Opinion of the Court by

The defendants M. & W. L. Lucas in their cross-answer to Mus-ton, etc., set up several sums of usury by way of counterclaim, *450and although they could not modify the judgment rendered against them at law because of defenses subsisting previous to it, under our Code, yet this court has frequently decided that usury paid may be recovered by action notwithstanding judgment for the debt. We think the allegations of the answer being uncontroverted should have been taken as true and a credit allowed for the various sums alleged to have been paid as usurious interest, and the judgment of Muston, etc., at the November term, 1863, is so far erroneous.

Mrs. Lucas seems to have paid some $200 or more of money derived from her grandfather’s estate for the house and lot ordered to be sold to pay Arthur’s claim on her husband and accepted an assignment of Johnson’s title bonds from M. & W. T. Lucas; the house and lot was worth some $550 — she should be protected to the amount which she has bonafidely paid, by either subjecting the house and lot for the sum she may yet owe on it, if this can be ascertained, else selling it and first appropriating out of its proceeds the amount which she has paid without interest as she has had the use of the house, and appropriating in either event a sufficiency of the remainder to pay Arthur. For these errors the judgments both of Munson, etc., and Arthur are reversed with directions for further proceedings in conformity hereto.