Lincoln Nat. Life Ins. v. Anderson , 71 S.W.2d 555 ( 1934 )

I agree that under the findings of the court the judgment of the trial court should be affirmed. However, I do not subscribe to that part of the majority opinion wherein it is held as follows: "Absent some sufficient element of estoppel, a renewal note, made payable to a new party, who takes the same with full knowledge of usury in the original, remains usurious in his hands." Neither do I subscribe to the doctrine laid down in the quotation from Davis v. Elba Bank Trust Co., 216 Ala. 632, 114 So. 211. Such holding may be correct under some circumstances, but not in all cases. I desire to make it clear that in my opinion if a third party, at the request of the debtor, takes up and pays off a usurious loan and takes a new note therefor from the debtor, his claim for the amount so advanced by him is valid even though he knew that the old debt paid off by him was usurious; and the mere fact that the new creditor took an assignment of the old debt in order to make sure that he was subrogated to the lien securing same would not alter the case, provided such new creditor, at the request of the debtor, actually advanced the amount of his claim and used the same in paying off the usurious debt.