The court below refused to submit the following issue tendered by plaintiffs: “Was the note and mortgage of 5 July, 1926, obtained by fraud and misrepresentation, as alleged in the complaint?” We think the court below correct.
In Electric Co. v. Morrison, 194 N. C., 316 (317), it is said: “The essential elements of actionable fraud or deceit are the representation, its falsity, scienter, deception, and injury. The representation must be definite and specific; it must be materially false; it must be made with knowledge of its falsity or in culpable ignorance of its truth; it must *482be made with fraudulent intent; it must be reasonably relied on by tbe other party; and be must be deceived and caused to suffer loss.” Stone v. Milling Co., 192 N. C., 585; Peyton v. Griffin, 195 N. C., 685; Willis v. Willis, 203 N. C., 517; Plotkin v. Bond Co., 204 N. C., 508.
It is well settled in this jurisdiction that facts constituting fraud must be clearly alleged in order that all necessary elements of fraud may affirmatively appear. If the allegations of fraud in the complaint came within the rule, there is no evidence on the record to support same. The testimony of the clerk of the Superior Court who took the acknowledgments of H. L. Ghormley and wife, Bettie J. Ghormley, and the latter’s privy examination, is to the effect that there was no semblance of fraud in the transaction. Bank v. Dardine, 207 N. C., 509.
It was contended by plaintiffs that C. C. Ghormley, the son of plaintiffs, was not the agent of plaintiffs in the transactions. We do not think the record bears out this contention, but this matter was left to the jury. The trial judge charged, in part: “But if you find C. C. Ghormley himself agreed to pay the interest, and that H. L. Ghormley and his wife, Bettie J. Ghormley, knew nothing about it and executed the deed of trust, then you would answer it in favor of the plaintiffs in the amount they claim is due the defendant.” All the evidence was to the effect that C. C. Ghormley was acting for the plaintiffs in the entire transactions, and the renewal note for $1,200, dated 5 July, 1926, was executed voluntarily.
This is an injunctive proceeding. In Mortgage Co. v. Wilson, 205 N. C., 493 (494-5), it is said: “It is a familiar principle that a borrower of money who seeks equitable relief must himself deal equitably with his adversary by paying the principal and lawful interest. The only forfeiture he may enforce is the excess of the legal rate of interest. Wilson v. Trust Co., 200 N. C., 788; Edwards v. Spence, 197 N. C., 495; Miller v. Dunn, 188 N. C., 397; Adams v. Bank, 187 N. C., 343.” On the note of 5 July, 1926, there was no illegal interest charged or accepted.
There is no dispute that the plaintiffs paid usury on the note of 26 February, 1917, but the defendant Abraham Hyatt pleaded the statute of limitations.
N. C. Code, 1931 (Michie), see. 442: “Within two years ... 2. An action to recover the penalty for usury. 3. The forfeiture of all interest for usury.”
The cause of action for the penalty of each payment of usury arises immediately and accrues upon the date of the payment. The action to recover the penalty for each usurious transaction is therefore barred under this section, upon the expiration of two years from the date of-the payment. Sloan v. Piedmont Fire Ins. Co., 189 N. C., 690.
*483C. S., 441: “Within three years an action — 1. Upon a contract, obligation or liability arising out of a contract, express or implied, except those mentioned in the preceding sections.”
The usury transactions are long since barred by the statute. Sec. 441 (9) is as follows: “For relief on the ground of fraud or mistake; the cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.”
The plaintiffs contend that this statute can be invoked. Not so; what rights they had, they have been negligent in asserting them.
We have examined the charge of the court below with care. We think the able and conscientious judge throughout the charge applied the law applicable to the facts. The court charged the jury clearly on the very gist of plaintiffs’ rights under the facts: “The court instructs you they would not be bound by what the agent did if they did not know it, and if you find the $120.00 a year was paid to retire the interest and principal, and that would reduce it to about $385.50 in 1930, and the plaintiffs contend you ought to find it is $385.50, with interest from 1930. Defendant contends plaintiffs were bound to know what was happening, that the son got the money for the use of himself and his brother, and that when the new note was taken up there it was for $1,200, and that they knew it was being paid at the rate of ten per cent per annum. It is a matter for you. Take the case and say in what amount, if any, the defendant is entitled to recover of the plaintiffs.”
It is said in Ector v. Osborne, 179 N. C., at p. 669: “A borrower is not, however, compelled to plead usury, and as the defense is personal to him it may be waived. . . . (p. 670). 'The statutes of usury being enacted for the benefit of the borrower, he is at liberty to waive his right to claim such benefit and pay his usurious debt, if he sees fit to do so. It is, therefore, held that when the debtor becomes a party to a general settlement of preceding usurious transactions, made fairly and without circumstances of imposition, his recognition and the amount agreed to be due as a new obligation will preclude his setting up the old usury in defense of the new debt. This rule is not held to apply, however, unless it is clear that the debtor has fully accepted the settlement as a just debt, separate and distinct from the preceding usurious obligations.’ 39 Cyc., 1024.” Dixon v. Osborne, 204 N. C., 480 (485-6).
We think the issue submitted correct, and in the numerous exceptions and assignments of error we see no prejudicial error.
The defendant Abraham Hyatt testified: “O. C. Ghormley agreed to pay ten per cent interest and I agreed to accept it. I did not know that was illegal rate. I learned that it was illegal before this note was renewed. ... I learned that ten per cent was an illegal rate later *484on. That is tbe reason I renewed tbe note.” Tbe renewal note bore six per cent interest, and tbe two payments for two years’ interest was $12.00 eaeb year.
Tbe charging and accepting of illegal interest bas always been looked upon by tbe courts with disfavor. Usury is a source of untold wrong and oppression. Tbe only court now to appeal to is one of conscience— in tbe breast of tbe defendant Abrabam Hyatt. On tbe trial of tbe action, we find
No error.