Tbe allegations and contentions of tbe plaintiff, denied and controverted by tbe defendants, wbicb gave rise to tbe first issue as to tbe taking and receiving from tbe Carolina Spinning Company of usurious interest on a loan of $40,000 to it by tbe Independence Trust Company, either for itself or as trustee, are tbat prior to 1928 tbe North State Cotton Mills Company, a corporation, bad executed a deed of trust to tbe Independence Trust Company, trustee, on its real estate, plant, and machinery, securing an indebtedness of $100,000 to said trust company wbicb was due in December, 1928, and tbat tbe president of tbe Independence Trust Company bad notified tbe officers and stockholders of tbe North Carolina Cotton Mills Company tbat said indebtedness could not be carried longer than tbe due date, and tbat said mill company was unable to meet said loan on said date; and tbat tbe president of tbe Independence Trust Company stated to tbe officers of tbe mill company tbat if they could raise $60,000, tbe trust company would loan them $40,000, with wbicb to pay off tbe indebtedness of $100,000 due tbe trust company, but tbat tbe trust company would require tbe payment of $10,000, in addition to 6% per annum on tbe $40,000 so loaned, to wbicb tbe officers of tbe cotton mill company acquiesced; and tbat tbe president of tbe trust company suggested tbat in order to evade tbe appearance of usury, tbat tbe officers and stockholders form another corporation and have tbe new corporation issue its 6% coupon bonds in tbe sum of $50,000 wbicb be, said president, would sell to tbe trust department of tbe trust company for par, and tbat tbe new corporation could pay tbe trust company $10,000 for negotiating such sale of such bonds; tbat this suggested plan was carried out by securing tbe charter of tbe Carolina Spinning Company and having it issue $50,000 in 6% coupon bonds secured by first deed of trust on its real estate, plant, and machinery, wbicb said bonds were delivered to tbe Independence Trust Company upon delivery to said Carolina Spinning Company of a check for $50,000, and tbat simultaneously with tbe delivery of tbe bonds and check aforesaid, tbe Carolina Spinning Company delivered to tbe Independence Trust Company a check for $10,000, and with tbe net $40,000 thus obtained, and $60,000 theretofore raised by tbe officers and stockholders, tbe Carolina Spinning Company purchased an assignment of a bid of $98,000 made by one J. A. Watson, an officer thereof, for tbe *476Independence Trust Company, at tbe foreclosure sale of tbe deed of trust securing tbe $100,000 indebtedness to tbe trust company by tbe former corporation, tbe North Carolina Cotton Mills Company, and took deed for tbe real estate, plant, and machinery of said corporation from tbe trustee therein, namely, tbe Independence Trust Company.
Tbe plaintiff contends that tbe suggested plan that a new charter be procured, and that bonds be issued in tbe sum of $50,000, and that $10,000 be paid as a commission for negotiating tbe sale thereof, was a scheme and subterfuge to evade tbe laws against usury, and to collect more than six per centum per annum on a loan of $40,000 to tbe Carolina Spinning Company by tbe Independence Trust Company; and that in collecting tbe $10,000 check, in addition to tbe 6% per annum provided in tbe bonds, tbe Independence Trust Company took and received on a loan of $40,000, a greater rate of interest than is allowed by law.
Tbe defendants, on tbe contrary, allege and contend that tbe plan followed in abandoning tbe old corporation, tbe North Carolina Cotton Mills Company, and in organizing of a new corporation, tbe Carolina Spinning Company, to buy tbe assets of tbe old corporation by taking an assignment of tbe bid of tbe highest bidder at tbe foreclosure sale under tbe deed of trust securing' tbe $100,000 indebtedness of tbe old corporation to Independence Trust Company, and financing such plan by raising $60,000 among tbe officers and stockholders, and $40,000 from a sale at par of a $50,000 coupon bond issue of tbe new corporation, secured by a first deed of trust, procured by paying a $10,000 commission to tbe Independence Trust Company for negotiating such sale, was a legitimate sale of coupon bonds of a private corporation, made in good faith, and within tbe provision of tbe last sentence of tbe statute against taking and receiving usury (O. S., 2306), which reads: “Nothing contained in tbe foregoing section, however, shall be held or construed to prohibit private corporations from paying a commission on or for tbe sale of their coupon bonds, nor from selling such bonds for less than tbe par value thereof.”
These adverse allegations and contentions of tbe parties, plaintiff and defendants, gave rise to tbe first issue submitted, which clearly presented tbe determinative question as to whether tbe transaction between tbe Carolina Spinning Company and tbe Independence Trust Company was a loan of $40,000 upon which usurious interest was charged, or was a bona fide sale of coupon bonds in tbe sum of $50,000, for tbe negotiation of which $10,000 was honestly paid. There was evidence tending to support tbe allegations and contentions of both parties, tbe issue was presented under a clear and impartial charge, and tbe jury found in favor of tbe plaintiff.
Tbe second issue was answered by tbe court by consent.
*477The third issue arose upon the plaintiff’s allegation that be was the owner of notes secured by a second mortgage of the Carolina Spinning Company on the same property as that upon which the first deed of trust securing the bonds for $50,000 was given, namely, the real estate, plant, and machinery of said company, and the denial of such allegation by the defendants. This issue was likewise submitted to the jury under a fair and impartial charge, and was likewise answered in favor of the plaintiff. There was ample evidence to support such answer.
The appellants stress their objections and exceptions to the denial by the court of their motions for judgment as of nonsuit, and address their argument more particularly to the evidence as it relates to the first issue.
It is well settled in this jurisdiction that a junior mortgagee, or the holder of notes secured by a second mortgage, has the right to have the amount due under a senior mortgage, or deed of trust, ascertained and definitely determined, and upon the payment of the sum so determined, to take an assignment of the senior mortgage or deed of trust, and of the notes or bonds secured thereby; and that when the senior mortgage or deed of trust is affected by usury, the amount to be paid by the junior mortgagee or holder of notes secured by a junior mortgage, before he can require the assignment, is the principal sum due, without interest, Broadhurst v. Brooks, 184 N. C., 123, and that when an issue is raised by the pleadings involving the exaction of usury, that such issue should be submitted to a jury for determination, Wilson v. Trust Co., 200 N. C., 788. It is also a well settled principle of law with us that when a transaction is in reality a loan of money, whatever may be its form, and the lender charges for the use of his money a sum in excess of interest at the legal rate, by whatever name the charge may be called, the transaction will be held to be usurious, and in determining the nature of the transaction, the law considers the substance and not the mere form or outward appearances. Pratt v. Mortgage Company, 196 N. C., 294.
There are no exceptions taken to the admission or exclusion of evidence, and we have carefully examined the assignments of error which assail the charge of the court, and are of the opinion that they should not be sustained. If the defendants desired fuller or more specific instructions than those given in the general charge, they should have asked for them, and not waited until the verdict had gone against them, Simmons v. Davenport, 140 N. C., 407, and if their contentions were not properly stated, the defendants should have called the attention of the court to any omissions or errors, so that they could have been supplied or corrected. Manufacturing Company v. Building Company, 177 N. C., 103.
The judgment of the Superior Court, which is in accord with the verdict, must be
Affirmed.