Haney v. Temple Trust Co.

• Decision Date: 30 November 1932
• Docket Number: No. 7806.,7806.
• Citation: 55 S.W.2d 894
• Parties: HANEY et al. v. TEMPLE TRUST CO.
• Court: Texas Court of Appeals

55 S.W.2d 894

HANEY et al. v. TEMPLE TRUST CO.

No. 7806.

Court of Civil Appeals of Texas. Austin.

November 30, 1932.

Rehearing Granted in Part and in Part Overruled December 21, 1932.

Appeal from District Court, Bell County; Few Brewster, Judge.

Suit by the Temple Trust Company against W. E. Haney and others. Judgment for plaintiff, and defendants appeal.

Reversed, cause abated, and remanded with instructions.

See, also, 55 S.W.(2d) 895.

Dibrell & Starnes, of Coleman, for appellants.

Jno. B. Daniel, of Temple, and Critz & Woodward, of Coleman, for appellee.

McCLENDON, C. J.

This cause is companion to cause No. 7804 (Tex. Civ. App.) 55 S.W.(2d) 891, this day decided; with these differences:

The notes here sued on and sought to be canceled by reason of alleged usurious interest were executed by Moore who later conveyed the land encumbered by the trust deed lien to Haney, by deed containing the following clause: "And the further consideration that the said W. E. Haney hereby assumes and agrees to pay off and discharge the indebtedness held against the hereinafter described property by Temple Trust Company, said indebtedness being in the principal sum of $2,000.00 and for a full description of said indebtedness reference is here made to the deed of trust records of Coleman County, Texas, and same is made part hereof."

Appellee contends that the defense of usury is not available to Haney because of his assumption of the mortgage debt, citing: Bowman v. Bailey (Tex. Civ. App.) 203 S. W. 922 (writ refused); People's Building & Loan Ass'n v. Sellars, 19 Tex. Civ. App. 201, 46 S. W. 370; Southern Home B. & L. Ass'n v. Winans, 24 Tex. Civ. App. 544, 60 S. W. 825; Vaughn v. Mutual Bldg. Ass'n (Tex. Civ. App.) 36 S. W. 1013; North Tex. Bldg. & Loan Ass'n v. Hay, 23 Tex. Civ. App. 98, 56 S. W. 580 (writ refused); Caldwell v. Commercial Bank of Waynoka, 80 Okl. 118, 194 P. 899; 39 Cyc. 998, Note 69, Col. 2.

Appellants contend that the general rule announced by these authorities is not applicable here for two reasons: (1) Because usury appeared upon the face of the instruments evidencing the debt and lien; and (2) because the assumption was only of the legal debt owing, and did not extend to the usurious interest.

In support of this latter proposition, appellants cite: National Loan & Investment Co. v. Stone (Tex. Civ. App.) 46 S. W. 67; 27 R. C. L. 289, § 90, p. 288, § 89, pp. 291, 292, § 92; Maloney v. Eaheart, 81 Tex. 281, 16 S. W. 1030; North Texas Bldg. & L. Ass'n v. Hay, 23 Tex. Civ. App. 98, 56 S. W. 580; Southern Home B. & Loan Ass'n v. Winans, 24 Tex. Civ. App. 544, 60 S. W. 825, 826; Bowman v. Bailey (Tex. Civ. App.) 203 S. W. 922; Johnston v. Lasker Real Estate Ass'n, 2 Tex. Civ. App. 494, 21 S. W. 961; People's Building & Loan Ass'n v. Sellars, 19 Tex. Civ. App. 201, 46 S. W. 370.

In the Winans Case it is held that the general rule invoked by appellee applies where the purchaser of the security, as part of the consideration, "promised absolutely to pay the full amount of the usurious debt."

In 27 R. C. L., p. 289, it is said: "Before a vendee will be estopped from setting up usury in a mortgage on his property, on the ground that he assumed its payment the assumption must be made clearly to appear. Ambiguous and doubtful statements will not suffice. Thus an agreement by a vendee of real estate to pay the balance on a mortgage existing on the lands he purchased, will be construed to mean what is legally due on the mortgage, and therefore will not cover usurious exactments. Likewise under a stipulation to pay the balance due on the debt, the purchaser is bound to pay only the balance legally due. The same is true of an agreement to pay `all legal amounts due.'"

The issue tendered by the wording of the assumption agreement presents, we think, a bona fide justiciable controversy, to determine which the Coleman county court clearly acquired jurisdiction. We do not think there is any substantial difference between questions of law and questions of fact in...