The assignee of a loan who collects from the borrower usurious interest on the principal is obviously in no better position than the original lender, and must make restitution. The same is true of the assignee of a note given for usurious interest who receives payment thereof,1 unless he is an innocent purchaser for value. An innocent purchaser for value of negotiable paper, before maturity, takes it freed from the defense of usury,2 except where the note is by statute void for usury,3 and therefore cannot be compelled to make restitution. And while an innocent purchaser for value of non-negotiable paper takes it subject to such defense,4 there is no injustice in his retention of money received in payment thereof, and consequently he is likewise under no quasi contractual obligation. However, the maker who pays to an innocent purchaser for value is not without remedy, for he may recover from the payee 5 - at least to the extent of the amount realized by the payee from the sale of the note over and above the amount which he might legally have collected from the maker.1 To that extent the payee has received a benefit the retention of which is unjust.

1 See Eggen v. Huston, 1890, 12 Ky. Law Rep. 158; 13 S.W. 919; Williams v. Wilder, 1865, 37 Vt. 613.

2 Tilden v. Blair, 1874, 21 Wall. (U. S.) 241; Conkling v. Underhill, 1842, 3 Scram. (4 111.) 388; Wortendyke v. Meehan, 1879, 9 Neb. 221; 2 N. W. 339; Bradshaw v. Vanvalkenburg, 1896, 97 Tenn. 316; 37 S. W. 88; Lynchburg Nat. Bank v. Scott, 1895, 91 Va. 652; 22 S. E. 487 ; 29 L. R. A. 827; 50 Am. St. Rep. 860.

3 Lowe v. Waller, 1781, 2 Doug. 736; Bridge v. Hubbard, 1818, 15 Mass. 96; 8 Am. Dec. 86; Union Nat. Bank v. Fraser, 1885, 63 Miss. 231; Wilkie v. Roosevelt, 1802, 3 Johns. Cas. (N. Y.) 206; 2 Am. Dec. 149; Ward v. Sugg, 1893, 113 N. C. 489; 18 S. E. 717; 24 L. R. A. 280; Galliard v. Le Seigneur, 1841, 1 McMull. L. (S. C.) 225; Gilder v. Hearne, 1890, 79 Tex. 120; 14 S. W. 1031.

4Allison v. Barrett, 1864, 16 la. 278; Wing v. Dunn, 1844, 24 Me. 128, (after maturity); Doll v. Hollenbeck, 1886, 19 Neb. 639; 28 N. W. 286; Chapin v. Thompson, 1880, 23 Hun (N. Y. Sup. Ct.) 12, 16; Zeigler v. Maner, 1898, 53 S. C. 115; 30 S. E. 829; 69 Am. St. Rep. 842; Aldrich v. Wood, 1870, 26 Wis. 168, (after maturity).

5 Woodworth v. Huntoon, 1865, 40 111. 131; 89 Am. Dec. 340; Culver v. Osborne, 1907, 231 111. 104; 83 N. E. 110; 121 Am. St. Rep. 302; Lacy v. Brown, 1879, 67 Ind. 478; Harbaugh v. Tanner, 1904, 163 Ind. 574; 71 N. E. 145; Webb v. Wilshire, 1841, 19 Me. 406; Dunn v. Moore, 1875, 26 Oh. St. 641.

Sec. 225. Same: Right To Recover Before Principal And Legal Interest Are Paid

It is a general rule, sometimes stated without qualification, that there is no right to recover usurious interest until the principal and legal interest are fully paid.2 In other words, the creditor may insist that usurious interest received by him be applied in diminution of the lawful debt. If, however, usurious interest is paid eo nomine and in satisfaction of an undertaking separate and distinct from the undertaking to pay principal and legal interest, it would seem that an obligation to make restitution arises immediately, although the lawful debt is still unpaid.3