Maloney v. Eaheart

• Decision Date: 05 June 1891
• Citation: 16 S.W. 1030
• Parties: MALONEY v. EAHEART <I>et al.</I>
• Court: Texas Supreme Court

16 S.W. 1030

MALONEY v. EAHEART et al.

Supreme Court of Texas.

June 5, 1891.

Appeal from district court, Shackelford county; T. H. CONNOR, Judge.

J. R. Fleming and Theodore Mack, for appellant. L. W. Campbell, for appellees.

HENRY, J.

This was an action of trespass to try title, brought by appellant. On the 17th day of October, 1883, the land in controversy belonged to W. P. Stone. On that date the said Stone and D. L. Cullum executed their promissory note to appellant for the sum of $900, payable 90 days after date, with interest, expressed upon its face at the rate of 1½ per cent. per month. Upon the same date Stone executed a deed of trust upon the land in controversy to secure the payment of said note. On the 25th day of October, 1886, Stone executed to one Norcop his note for $593.13, payable on the 21st day of January after date, with interest from maturity at the rate of 12 per cent. per annum, and on the same day he executed a deed of trust upon the land in controversy to secure said note. Payments amounting to the sum of $275 were made to appellant, and indorsed as credits upon the note held by him. Except for said amount both of said notes remained unpaid on the 13th day of May, 1887, on which date Norcop recovered in the district court of Shackelford county, against Stone, a judgment for the sum of $1,693.88, from which was deducted the sum of $575 for damages recovered in the same suit by Stone against him. Of the judgment so recovered by Norcop the sum of $593.13, with the interest thereon, was adjudged to be a lien, by reason of the last-named deed of trust, upon the land in controversy, which was foreclosed, and an order of sale was directed to be issued. A credit of $800 was entered upon the judgment, and on the 6th day of June, 1887, an order of sale was issued for a balance of $318.80, which came to the hands of the sheriff, and on said last-mentioned date he advertised said land for sale thereunder. On the next day, the 7th day of June, 1887, Stone, in consideration of the mortgage debt due by him as aforesaid, voluntarily made to Maloney a deed for the land without foreclosure or the intervention of the trustee. The land was duly sold by the sheriff in pursuance of the order of sale issued upon the Norcop judgment, and was purchased by Eaheart, the appellee, who bid and paid for it the sum of $371, and received a deed for it from the sheriff. Among other defenses, appellee pleaded the foregoing facts, and that plaintiff's debt was usurious. Stone was made a defendant, and filed an answer denying any indebtedness to the plaintiff, but did not plead usury. The cause was tried by the court without a jury, and judgment was rendered on the 20th day of November, 1888, in favor of Maloney, the plaintiff, and against Stone, for the sum of $684, with a foreclosure of the lien of the mortgage first described for said sum upon the land in controversy. An order of sale was directed to be issued, and it was ordered that the proceeds of the sale to be made thereunder should be used for discharging the plaintiff's judgment, and that the surplus, if any remained, should be paid to the defendant Eaheart. The costs of the suit were adjudged against the plaintiff, on the ground that it appeared from the evidence that before the institution of his suit the defendant had tendered to him the full amount due upon his note.

It is contended that the court erred in sustaining the plea of usury, because that plea is the personal privilege of the debtor, and was not...