(Filed 18 February, 1931.)
Appeal and Error E h — Where parties agree that issue of indebtedness should be answered in certain sum question of usury becomes academic.
In an action to restrain the foreclosure of a mortgage on lands wherein, on the trial, it is admitted that the issue as to the amount of plaintiff’s indebtedness should be answered in a certain amount, the question as to whether the plaintiff is entitled to a credit on the note for usurious charges becomes academic, and will not be decided on appeal.
Appeal by plaintiffs from Moore, Special Judge, at November Civil Term, 1930, of Maetin.
*348Civil action to restrain the foreclosure of a mortgage and to have the debt secured thereby credited with a forfeiture of the entire interest charged and twice the amount of usurious interest paid thereon.
On the hearing, the plaintiffs agreed that the issue of indebtedness “might be answered in the sum of $384 with interest from 26 January, 1929,” which was done. Upon this admission, the court directed a verdict accordingly, dissolved the temporary restraining order, and dismissed the claim for forfeiture of interest and penalty for usury. Plaintiffs appeal, assigning errors.
A. R. Dunning for plaintiffs.
Wheeler Martin and B. A. Qritcher for defendants.
Stacy, C. J.
The admission of the plaintiffs that the issue of indebtedness might be answered in the sum of $384 with interest from 26 January, 1929, which was done, brings the case under the decisions in Waters v. Garris, 188 N. C., 305, 124 S. E., 334, and Miller v. Dunn, 188 N. C., 397, 124 S. E., 746, and renders the questions relative to forfeiture of interest and penalty for usury, debated on brief, academic, at least so far as the present record is concerned.
No error.