Burt v. Brashears

• Decision Date: 03 June 1918
• Docket Number: 20125
• Citation: Burt v. Brashears, 118 Miss. 339, 79 So. 182 (Miss. 1918)
• Court: Mississippi Supreme Court
• Parties: BURT ET AL v. BRASHEARS

79 So. 182

118 Miss. 339

BURT ET AL v. BRASHEARS

No. 20125

Supreme Court of Mississippi

June 3, 1918

Division B

APPEAL from the chancery court of Bolivar county, HON. JOE MAY Chancellor.

Suit by W. I. Brashears, executor, against W. T. Burt and another trustees. From the decree rendered, defendant appeals, and plaintiff cross-appeals.

The facts are fully stated in the opinion of the court.

Affirmed on direct appeal, and reversed and remanded on cross-appeal.

Whitfield & Whitfield, for appellants, and cross-appellees.

A. W. Shands, for appellee and cross-appellant.

OPINION

STEVENS, J.

There is in this case an appeal and cross-appeal, growing out of the following state of facts:

In February, 1912, one Alfred Buford, now deceased, executed his promissory note to appellant W. T. Burt, in the sum of two thousand dollars due and payable January 1, 1913, and to secure this note and "any other amount that might be due" by the maker of said note, a deed of trust was duly executed on approximately four hundred acres of land in Bolivar county. On December 31, 1912, Buford executed to Burt another promissory note in the sum of seven hundred and seventy-nine dollars and twenty-five cents, stipulating for interest as follows: "With ten per cent. interest per annum from date until paid." The note for two thousand dollars had the following provisions for interest: "With ten per cent. interest straight until paid." In making this provision it appears that the words "per annum from" in the printed form of the note were struck out, and the word "straight" substituted before the note was signed; this change being made by Mr. Burt himself, but "before the party signed the note." Other advances were made by Burt to Bulford, and this indebtedness is claimed by open account. In May, 1914, Alfred Buford died, leaving a last will and testament, by which he appointed Brashears, the appellee herein, as his executor. Mr. Sillers, as substituted trustee in the deed of trust, was proceeding to advertise the lands embraced in the deed of trust for sale when appellee, as executor, filed a bill in the chancery court to enjoin the sale, and upon this bill the temporary writ of injunction was issued, and thereafter at final hearing the chancellor held that the injunction was rightfully sued out. The main charge in the bill of complaint is the averment that both the note for two thousand dollars and the one for seven hundred and seventy-nine dollars and twenty-five cents were usurious, and that the indebtedness should be purged of usury, and an accounting should be taken under the direction of the court.

The court in the final decree found that the provision "with ten per cent, interest straight" in the two thousand dollars note was usurious, but that the principal sum was due and payable; that the note for seven hundred and seventy-nine dollars and twenty-five cents embraced the sum of two hundred charged against Buford as usurious interest on the two thousand dollar note, and that the amount due under the last note "is the sum of five hundred and seventy-nine dollars and twenty-five cents with interest at the rate of ten per cent. per annum from the date thereof until this date, together with an attorney's fee of ten per cent. on the total amount of principal and interest." The court allowed two hundred dollars attorney's fees on the two thousand dollar note, and also attorney's fees on the smaller note. The decree further found that the injunction was rightfully sued out, but that further than above stated, the proof submitted "does not sufficiently advise the court as to what is the full amount due by the complainant to the defendant W. T. Burt, or as to what amount, if any, additional to to the notes hereinbefore mentioned, is secured by the trust deed," and that the decree rendered should not be regarded as an adjudication of the full amount secured by the trust deed, or as to the full amount due by the estate of Buford to Mr. Burt. Both parties excepted to the rulings of the court and the decree rendered, and prosecuted appeals. The direct appeal of Mr. Burt challenges the correctness of the final decree principally upon two grounds: First that there was no valid tender of the amount actually due and owing and secured by the trust deed; and, secondly, the court declined to permit the introduction of parol evidence to explain the meaning of the phrase "ten per cent. straight." The cross-appeal assigns as error the allowance by the court of interest on the seven hundred and seventy-nine dollars and twenty-five cent note, after crediting it with two hundred dollar adjudged to be usurious;...