Cowan v. Wilson, 4392.

• Decision Date: 24 June 1935
• Docket Number: No. 4392.,4392.
• Citation: 85 S.W.2d 823
• Parties: COWAN v. WILSON et ux.
• Court: Texas Court of Appeals

85 S.W.2d 823

COWAN v. WILSON et ux.

No. 4392.

Court of Civil Appeals of Texas. Amarillo.

June 24, 1935.

Rehearing Denied September 9, 1935.

Appeal from District Court, Lubbock County; Homer L. Pharr, Judge.

Suit by R. I. Wilson and wife against Myrtle P. Cowan and others, in which Myrtle P. Cowan filed a cross-action. From an adverse judgment, the named defendant appeals.

Reversed and remanded.

Bean, Duggan & Bean, of Lubbock, for appellant.

Vickers, Campbell & Evans, of Lubbock, for appellees.

HALL, Chief Justice.

This suit involves the validity of a contract made by Wilson and wife, Lorena Wilson, with the Temple Trust Company, under the terms of which Wilson and wife borrowed $14,000 from said company. The contract is in its main features similar to the contracts which we have considered in Temple Trust Co. et al. v. O. Lykes et ux. (Tex. Civ. App.) 85 S.W.(2d) 818, Temple Trust Co. et al. v. W. L. Logan et ux. (Tex. Civ. App.) 85 S.W.(2d) 816, and Temple Trust Co. et al. v. Lou Stubbs et al. (Tex. Civ. App.) 85 S.W.(2d) 817, and has been attacked by the appellees upon the ground that it is tainted with usury.

The debt in the instant case is secured by a first mortgage on lot 11, in block No. 134, in the town of Lubbock, and to secure an interest note in the sum of $1,857.50 a second mortgage was executed by Wilson and wife upon the same property. The mortgages are practically identical with the mortgages in the above cases, and the cases cited therein, in which loans were made by the Temple Trust Company to the complainants.

The allegation in this case is that the loan was usurious because of the clause in the second mortgage reading as follows: "But if default should be made in the payment of any of the installments on the note above described for $1,857.50, or of the note or bond secured by the first mortgage aforesaid, or if default should be made in the compliance with any of the terms and conditions of said first mortgage, which are hereby adopted and made a part of this instrument, then the whole sum of money hereby secured, being for the full amount of the balance unpaid on said note for $1,857.50, shall become due and payable at the election of the holder thereof."

As in the cases mentioned above, the contract between the Temple Trust Company and the plaintiffs was evidenced by the notes given for the principal of the loan and the interest, together with the two mortgages, and together they constitute one contract, and by reference in one to the other they must be considered as one contract.

Wilson and wife alleged the payment of certain amounts of interest, and sought to have this interest credited upon the principal, and to have the $1,857.50 interest note canceled.

Mrs. Cowan, who had become the purchaser of the original note, answered that she was not the owner of the interest note, and was informed that it was still owned by the Temple Trust Company and in the hands of its receiver, H. C. Glenn.

Neither the Temple...