Lee v. Security Bank & Trust Co.

• Citation: 139 S.W. 690,124 Tenn. 582
• Parties: LEE et al. v. SECURITY BANK & TRUST CO. et al.
• Decision Date: 29 June 1911
• Court: Supreme Court of Tennessee

139 S.W. 690

124 Tenn. 582

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 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 some daily newspaper published in Memphis, Tennessee, and sell the said property for cash to the highest bidder, free from the equity of redemption, homestead, dower and all other exemptions, all of which are hereby expressly waived, and said trustee shall execute a conveyance to the purchaser in fee simple, and deliver possession to the purchaser which the grantors bind themselves shall be given without obstruction, hindrance or delay."

Default occurred on two notes maturing January 20, 1910, and in the payment of taxes and insurance. The bank called Mr. Lee's attention to this. He said he was unable to meet the debt, but that he had pending, at the time, a lawsuit in this court against his father's estate; that if he should be successful in this suit he would be in funds sufficient to pay the whole indebtedness; if not he would not be able to pay any of it. The bank did not formally agree to any postponement for the time indicated, but gave him an intimation that it would wait on him until the suit should be heard from. The suit was finally decided in the early part of July, 1910. The president of the bank testified that after this time he called upon Mr. Lee for the money, and he said he was unable to pay it. Mr. Lee denies this, and says that at the time the suit was decided adversely to him in this court he went on a "spree," and was not up town until the day the sale of the property was to take place under the proceedings hereinafter mentioned.

We have carefully read the testimony of the parties upon this subject, and we are inclined to think that Mr. Lee may have been spoken to by the bank, and may have forgotten it, owing to the fact that he was under the influence of strong drink. In short, taking into consideration his condition as admitted by himself, and the positive testimony of the president of the bank, we are inclined to think that the latter states the facts more accurately. However, this question aside, it appears that shortly after the result of the case in this court was known, the bank caused the property to be advertised by the trustee for sale. This advertisement is dated July 18, 1910, and, so far as necessary to be quoted, reads:

"Default having been made in the payment of the debts and obligations secured to be paid in a trust deed executed

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