Lee v. Security Bank & Trust Co.

• Citation: 139 S.W. 690
• Parties: LEE et al. v. SECURITY BANK & TRUST CO. et al.
• Decision Date: 29 June 1911
• Court: Supreme Court of Tennessee

Page 690

139 S.W. 690 LEE et al.
v.
SECURITY BANK & TRUST CO. et al. Supreme Court of Tennessee. June 29, 1911.

Appeal from Chancery Court, Shelby County; F. H. Heiskell, Chancellor.

Suit by B. W. Lee and another against the Security Bank & Trust Company and others to enjoin a mortgage foreclosure sale, in

Page 691

which defendants filed a cross-complaint. From a decree for cross-complainants, complainants appeal. Affirmed in part.

McKellar & Kyser, for complainants. Thos. M. Scruggs, for defendant.

NEIL, J.

On the 15th day of September, 1909, Mrs. B. W. Lee, and her husband, James Lee, Jr., being indebted to the Security Bank & Trust Company by nine promissory notes, two maturing January 20, 1910, three of them January 20, 1911, 1912, and 1913, respectively, two January 20, 1914, and two January 20, 1915, all aggregating $37,473.32, all executed pursuant to a contract dated September 9, 1907, and bearing interest at the rate of 6 per cent. per annum from date, except one, and all of them providing for attorney's fees, executed a trust deed to W. R. Cross, upon certain real estate situated in Memphis, Tenn., for the purpose of securing these notes; also all taxes and assessments and insurance. The instrument provided that the payee should be at liberty to advance and pay such sums as might be proper to satisfy taxes and to maintain insurance and repairs, and to protect and preserve the property, and that such amounts so paid should be held and treated as part of the expense of administering the trust. The trust deed contained the usual provision that upon the payment of the indebtedness and expenses the title should revest in Mrs. B. W. Lee, who owned the lot at the time the instrument was made.

The trust deed also contained the following:

"But if said grantors shall fail to pay any part of said indebtedness promptly when the same becomes due, or shall fail to pay any sum necessary to satisfy and discharge taxes before they become delinquent, or to maintain insurance or repairs, or the necessary expense or protecting the property, and executing this trust, then, or in either such event, all of the indebtedness herein secured shall, at the option of the owner thereof, and without notice to the grantors, become immediately due and payable, principal and accrued interest, and the said trustee is hereby authorized and empowered to enter and take possession of said property, and before or after such entry to advertise the sale of said property for twenty-one days by three weekly notices in...