Finley v. Wakefield

• Decision Date: 11 March 1916
• Docket Number: (No. 7460.)
• Citation: Finley v. Wakefield, 184 S.W. 755 (Tex. App. 1916)
• Parties: FINLEY et al. v. WAKEFIELD.
• Court: Texas Court of Appeals

184 S.W. 755

FINLEY et al. v. WAKEFIELD.

(No. 7460.)

Court of Civil Appeals of Texas. Dallas.

March 11, 1916.

Appeal from District Court, Grayson County; M. H. Garnett, Judge.

Suit by John T. Wakefield against A. P. Finley and another. From a judgment for plaintiff, defendants appeal. Reversed in part, reformed in part, and otherwise affirmed.

C. B. Randell and J. W. Finley, both of Sherman, for appellants. Wolfe & Wood, of Sherman, for appellee.

TALBOT, J.

On April 11, 1914, appellee filed suit on note, dated October 6, 1909, signed by appellants and payable to H. O. Head, or order, five years after date, for the sum of $1,260, with interest at the rate of 8 per cent. per annum, and stipulating that if the same was placed in the hands of an attorney for collection, the makers agreed to pay 10 per cent. on the amount as reasonable attorney's fees. The note sued on was given in renewal and extension of a certain other note, dated August 25, 1903, signed by appellants, payable to the order of W. H. O'Neal as trustee, five years after date, for the sum of $1,200, with interest at the rate of 8 per cent. per annum from date, and 10 per cent. attorney's fees if placed in the hands of an attorney for collection. The said W. H. O'Neal, trustee, for a valuable consideration, transferred and assigned said note to H. O. Head, to be held by him as security for payment of the note sued upon, and thereafter, on the 16th day of April, 1914, the said H. O. Head, by written transfer, sold and conveyed said note to appellee. The note was secured by a vendor's lien, as well as by a deed of trust, executed by appellants on the land described in plaintiff's petition, and the interest on said note, according to its terms, was payable annually, on the 6th day of October of each year, and the deed of trust stipulated that if default was made in payment of any installment of interest thereon, when due, that the same could, at the option of the holder, be declared due and payable. Appellants had failed to pay certain installments of interest due on said note, and H. O. Head, who was then the legal and equitable holder and owner of the note, declared the same due, and brought suit thereon. The appellee then purchased the note, and H. O. Head then dismissed his suit. After acquiring said note, appellee borrowed $1,000 from the Sherman Loan & Trust Company, and placed the note with it as collateral security for such loan, but for the purpose of bringing suit upon it said company returned said note to appellee. Appellee, after purchasing the note, ratified the act of said Head in declaring the note due, and further exercised his option of declaring the same due and payable, according to the terms of said note and the authority conferred upon him as the holder thereof, by said deed of trust, and brought this suit.

The principal matters of defense were: First, that the note sued on and the deed of trust given on the land involved in the controversy were not obtained in the usual course of business nor for profit or business reasons, but for spite, and that appellee was estopped from claiming the attorney's fees sought to be recovered; second, that the appellee had no lien on said land for the attorney's fees claimed in his petition, because said land, at the time the original note was given to W. H. O'Neal and at the time the renewal note sued on was executed, which provided for the payment of attorney's fees, was, and had been for some months, the homestead of appellants. The property described in appellee's petition belonged to two minor children, Lula Sophia Matthews and Paul Matthews, and Mrs. M. T. Brown was their guardian. Mrs. Brown, as such guardian, made application to the county court of Grayson county, Tex., for an order to sell said property. On January 17, 1903, this application was granted, and Mrs. Brown, by order of the court duly made, was authorized and directed to sell the property for cash or half cash and the balance on credit, not to exceed four years, as to her should seem best for the interest of said estate. On June 4, 1903, said guardian reported to the court that she had sold the property to Eudora T. Finley, one of the appellants, at private sale, on May 15, 1903, for $1,600, one-half thereof to be paid cash and the remainder in equal installments, payable on or before one, two, and three years from date of said sale, each secured by note bearing 10 per cent. interest from its date, and by vendor's lien on said premises. On June 11, 1903, said sale was approved and confirmed by the court, and Mrs. Brown, as guardian of the estates of said minors, was ordered to make deed to the purchaser, Mrs. Eudora Finley, upon her compliance with the terms of the sale. The appellants were, at the time of all the transactions in question, husband and wife, and the property was purchased with the intention of making it their home, and before or about the time of the confirmation of the sale by the county court they moved onto it, and continuously since that date have occupied, used, and claimed it as their homestead. In making the purchase of the property from the guardian of the minors, appellants did not contract or agree to pay any attorney's fees whatever, and the order of sale did not require that the purchaser agree to pay attorney's fees in any event. At some time, the date of which the record does not disclose, but prior to the making of any deed by the guardian, the minor, Lula Sophia Matthews, intermarried with Charles E. Hipolite. On the 25th day of August, 1903, Mrs. Brown, as guardian, executed and delivered to appellant Mrs. Eudora Finley a deed for the land in question. This deed purports to have been made by virtue of the order of sale granted to Mrs. Brown as guardian of the Matthews children, the sale to Mrs. Eudora Finley, and the subsequent confirmation thereof by the county court, and contains the following recitations:

"And whereas said purchaser has elected to pay and has paid the entire purchase money: Now therefore, in consideration of the premises and the payment of the entire purchase money as follows: Four hundred dollars ($400.00) paid by Mrs. Eudora T. Finley and received by me for Lula Sophia Hipolite, formerly Lula Sophia Matthews, and twelve hundred dollars ($1,200.00) paid by W. H. O'Neal, trustee, and for which said Mrs. Eudora T. Finley and her husband, A. P. Finley, have executed their certain promissory notes, payable five years after date, with the privilege of paying the same at the end of two years or at the end of any year after said two years and before five years, interest payable semiannually at the rate of 8 per cent. per annum, and providing for 10 per cent. attorney's fees, and to secure the payment of said note the vendor's lien is hereby retained and the grantor herein does hereby sell and convey to the said W. H. O'Neal, trustee, the superior title and vendor's lien given by law to further secure said note, which is also further secured by the grantee herein, joined by her said husband, executing their certain deed of trust to secure the said W. H. O'Neal as trustee, I, Mrs. M. T. Brown, guardian as aforesaid, have granted, sold," etc.

Following the foregoing recitations is the habendum clause, the description of the property, and this provision:

"It is expressly understood, however, that the vendor's lien is retained upon said premises and improvements, to W. H. O'Neal as above specified, until the note above mentioned and all interest thereon, is fully paid, according to its tenor and effect."

On the same day that Mrs. Brown executed the deed just referred to, Mrs. Lula Sophia Hipolite, joined by her husband, also executed and delivered to appellant Mrs. Eudora Finley a deed to said property, which, omitting the description of the land, the habendum and warranty clauses, and formal parts, is as follows:

"Know all men by these presents, that we, Lula Sophia Hipolite, formerly Lula Sophia Matthews, joined by her husband, Charles E. Hipolite, of the county of Jefferson, state of Arkansas, in consideration of the sum of one thousand six hundred dollars ($1,600.00) paid to Mrs. M. T. Brown, guardian of the estate of said Lula Sophia Matthews and Paul Matthews, as follows: Four hundred dollars ($400.00) paid by Mrs. Eudora T. Finley to said guardian for me, and the sum of one thousand, two hundred dollars ($1,200.00) paid said guardian by W. H. O'Neal, trustee, and for which said Mrs. Eudora T. Finley and her husband, A. P. Finley, have executed their certain promissory note payable five (5) years after date with the privilege of paying the same at the end of two (2) years, or at the end of any year after said two (2) years and before five (5) years, interest payable semiannually at the rate of eight per cent. per annum, and providing for ten per cent. attorney's fees, and to secure the payment of said note a vendor's lien is hereby retained and the grantors herein do hereby sell and convey to said W. H. O'Neal, trustee, the superior title and vendor's lien given by law to further secure the said note, which is also further secured by the grantee herein, joined by her said husband, executing their certain deed of trust to secure the said W. H. O'Neal as trustee, have granted, sold and conveyed and by these presents do grant, sell and convey unto the said Eudora T. Finley of Grayson county, Texas, as her sole and separate property the undivided one-half interest of the said Lula Sophia Hipolite in and to that certain tract or parcel of land situated in the city of Sherman in Grayson county, Texas, and being part of the J. B. McAnair survey. Said land having been the property of the estate of Lula Sophia Matthews and Paul Matthews, minors, guardianship proceedings on which estate is pending in the county court of Grayson county, Texas, by order of which court entered on the 17th of January, 1903, the guardian of said estate, Mrs. M. T. Brown, was ordered to make...