Hovey v. Edmison

• Decision Date: 16 February 1885
• Citation: 22 N.W. 594,3 Dakota 449
• Parties: Hovey v. Edmison and others.
• Court: North Dakota Supreme Court

22 N.W. 594

3 Dakota 449

Hovey v. Edmison and others.

Supreme Court of Territory of Dakota

February 16, 1885

Appeal from Fourth judicial district, Minnehaha county.

FRANCIS J., dissents as to the allowance of attorney's fee.

Wilkes & Wells and Bartlett Tripp, for appellants. Winsor & Sweezy for respondents.

PALMER J.

This is an action brought to foreclose two mortgages securing a promissory note executed by Margaret Edmison and James Jamison, and the litigation between the parties occurs mainly upon the question of interest, the plaintiff claiming that there should be annual rests in the calculation of the interest; that is, that as the note specifies that the interest should be payable annually, and further says that if the interest is not paid when due, such interest from that time shall draw interest at the rate of 12 per cent. per annum, that he is entitled to calculate interest as stipulated by the note. The plaintiff offered in evidence the note in question, which is as follows:

FIRST NOTE, EXHIBIT A.

"$2,500.00.

VINTON IOWA, March 6, 1879.

"On the sixth day of March, 1881, for value received, we promise to pay Elijah A. Hovey, or order, twenty-five hundred (2,500.00) dollars, with interest thereon at the rate of 12 per cent. per annum, payable annually at Sioux Falls, D. T. Should any of the interest not be paid when due, it shall bear interest at the rate of 12 per cent. per annum, and a failure to pay any of said interest within thirty days after due shall cause the whole note to become due and collectible at once. It is also stipulated that should suit be commenced for the collection of this note, a reasonable amount shall be allowed as attorney's fees, and taxed with the costs in the same suit.

Due March 6, 1881.

P. O., Vinton, Benton county, Iowa.

No. 70.

JAMES JAMISON.

"MARGARET EDMISON."

Upon the above note were the following indorsements: "March 17, 1880, received $150, on interest. (Indorsed in pencil:) Interest 10 per cent. after May 6th, 1881, for one year."

2. Plaintiff introduced in evidence two mortgages, each duly acknowledged and recorded, and each mortgage containing a stipulation for attorney's fees as follows:

"And the said parties of the first part do hereby further covenant and agree that they will pay all taxes and assessments of every nature that may be levied upon said premises, before the same shall become delinquent, and keep said premises thereon insured for at least $2,500,--loss, if any, payable to the mortgagee as his interests may appear,--and will also pay the sum of $75.00 as attorney's fees in case of a foreclosure of this mortgage by reason of the nonperformance of any of the conditions hereof by said parties of the first part. And in case default shall be made in the payment of the said sum of money, or any part thereof, at the time or times above specified for the payment thereof, or in case of non-payment of any taxes as aforesaid, or the breach of any covenant or agreement herein contained, then, and in either case, the whole principal and interest of said note shall, at the option of the holder thereof, immediately become due and payable; and it shall be lawful in such case for the said party of the second part, his heirs, executors, administrators, or assigns, to grant, bargain, sell, release, and convey the said premises, with the appurtenances thereunto belonging; duly authorized, constituted, and appointed to make, execute, and deliver to the purchaser or purchasers, his, her, or their heirs or assigns, forever, good, ample, and sufficient deeds of conveyance in the law, and out of the moneys arising from such sales, after deducting all expenses thereof, together with all sums paid on taxes, cost of advertising, or insurance on said premises, and the sum of $75.00 attorney's fees as aforesaid, to retain the principal and interest that may be due on said note, rendering the surplus moneys, if any there be, to the said parties of the first part, their heirs, executors, administrators, or assigns, on demand."

The court trying the cause made the following findings of fact from the evidence:

(1) That on the first of March, 1879, the defendants Margaret Edmison and James Jamison made their promissory note, bearing date on that day, in the words and figures following, viz.:

"$2,500.00.

VINTON, IOWA, March 6, 1879.

"On the sixth day of March, 1881, for value received, we promise to pay Elijah A. Hovey, or order, twenty-five hundred dollars, ($2,500,) with interest thereon at the rate of 12 per cent. per annum, payable at Sioux Falls, Dakota territory. Should any of the interest not be paid when due, it shall bear interest at the rate of 12 per cent. per annum, and a failure to pay any of said interest within thirty days after due shall cause the whole note to become due and collectible at once. It is also stipulated that should suit be commenced for the collection of this note, a reasonable amount shall be allowed as attorney's fees and taxed with the costs in the case.

Due March 6, 1881.

JAMES JAMISON.

"MARGARET EDMISON.

"P. O., Vinton, Benton county, Iowa."

(2) That the said defendants Margaret Edmison and Percival H. Edmison, to secure the payment of the principal sum and the interest thereon, as mentioned in said note, according to the tenor thereof, did execute under their hands and seals, and deliver to the said plaintiff, a certain mortgage bearing date the fifth day of July, 1879, and a condition for the payment of the said sum of twenty-five hundred dollars, and interest thereon at the rate and at the times and manner specified in said note, and according to the conditions thereof, on the south-east quarter of section No. 13, in township 101, of range 49, in the county of Minnehaha and territory of Dakota.

(3) That said mortgage was duly acknowledged and certified so as to entitle it to be recorded, and was afterwards recorded, on the fourteenth day of July, 1879, in the office of the register of deeds of the county of Minnehaha, Dakota territory, in Book E of Mortgages, on page 211.

(4) That the said defendants James Jamison and Margaret Jamison, to secure the payment of the same said principal sum, and the interest thereon, as mentioned in said note, according to the tenor thereof, did execute, under their hands and seals, and deliver to the said plaintiff a certain other mortgage, bearing date the fifth day of July, 1879, and conditioned for the payment of the said sum of twenty-five hundred dollars, and interest thereon at the rate and at the times and manner specified in said note, and according to the conditions thereof, on the following described lands in Minnehaha county, Dakota territory, viz., lot No. 18 of block No. 16 of J. L. Phillips' addition, in Sioux Falls.

(5) That said mortgage was duly acknowledged and certified, so as to entitle it to be recorded, and the same was afterwards, on the fourteenth day of July, 1879, duly recorded in the office of the county register of deeds of the county of Minnehaha, Dakota territory, in Book E of Mortgages, on page 212.

(6) That the defendants Margaret Edmison and Percival H. Edmison covenanted and agreed in the said mortgage executed by them that, in case of foreclosure of said mortgage, they would pay the sum of seventy-five dollars as attorney's fees.

(7) That the defendants James Jamison and Margaret Jamison covenanted and agreed in the said mortgage executed by them that, in case of foreclosure of said mortgage, they would pay the sum of seventy-five dollars as attorney's fees.

(8) That no part of said principal or interest has ever been paid, except the sum of one hundred and fifty dollars, paid March 17, 1880.

(9) That at the time said note and mortgage were executed there was a mutual mistake as to the amount of said note, which should have been in the sum of two thousand four hundred and eighty-seven and one-half dollars, instead of two thousand five hundred dollars.

(10) That on or about the sixth day of March, 1881, it was mutually agreed between the plaintiff and defendants that the principal sum mentioned in said promissory note should, from and after the sixth day of March, for the term of one year, bear interest at the rate of ten per cent. per annum, and that defendants should have the use of it one year from said sixth day of March, 1881, at said rate of interest.

(11) That said plaintiff is the owner and holder of said note and mortgage.

(12) That no proceedings, at law or otherwise, have been made to recover the sums secured by said note and mortgages, or any part thereof.

(13) That prior to the commencement of this action, and about the seventeenth day of July, 1883, defendants tendered to plaintiff, as full satisfaction of said note and mortgage, the sum of $3,456.85, at Sioux Falls, D. T., which the plaintiff refused to accept.

And as conclusions of law therefrom, pro forma:

(1) That there is now due and unpaid to the plaintiff, upon said note and mortgages, the sum of $2,487.50 as principal and interest on said sum at the rate of twelve per cent. per annum, and the interest on each annual payment of interest at the rate of 12 per cent. per annum from the sixth day of March of each year since the giving of said note, namely, March 6, 1879, less the payment of $150, March 17, 1881, amounting in all to the sum of $4,267.79, and that plaintiff is entitled to recover said sum.

(2) The plaintiff is entitled to recover the sum of one hundred and fifty dollars as attorney's fees, as stipulated in said mortgages, and his costs and disbursements in this action.

(3) That plaintiff is entitled to a judgment of the sale of the premises described in said mortgages, to realize the aforesaid amount of $4,267.79, together with the attorney's fees, costs, and

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