Haines

Respondents, plaintiffs below, executed to appellant and defendant below, Commercial Mortgage Company, a note as follows:

A trust deed to secure payment was, as a part of the same transaction, executed to the other defendant and appellant, Title Insurance and Trust Company, as trustee. Bight monthly payments of $800 each were made on the said note at the times called for therein, of which said eight payments $2,953.11 in the aggregate was, by special agreement of the parties, referred to interest, and the remainder, aggregating $3,446.89, referred to payment on the principal. Default then occurred in said payments and the record discloses no payments thereon since said time. The legal steps necessary to declare the whole principal debt due were taken and foreclosure and sale of the property covered by the trust deed was about to be made when the present action was commenced.

The complaint filed on January 13,- 1925, and as later amended, alleges that said "transaction was usurious in that the defendant mortgage company exacted a commission of three per cent upon the loan, or $1,020, in addition to the twelve per cent per annum provided for in the said note. It also alleges the…