Martin v. Land Mortg. Bank

• Decision Date: 22 November 1893
• Citation: 23 S.W. 1032
• Parties: MARTIN v. LAND MORTG. BANK OF TEXAS.
• Court: Texas Court of Appeals

23 S.W. 1032

MARTIN v. LAND MORTG. BANK OF TEXAS.

Court of Civil Appeals of Texas.

November 22, 1893.

Error from district court, Travis county; W. M. Key, Judge.

Action by the Land Mortgage Bank of Texas against Mathias Martin on a promissory note secured by a trust deed. There was a judgment in plaintiff's favor, and defendant brings error. Affirmed.

The other facts fully appear in the following statement by COLLARD, J.:

This suit was brought by the defendant in error against the plaintiff in error on April 4, 1891, on a promissory note executed by the latter to the former for $3,000, borrowed money, and interest due thereon, of date March 1, 1887, and due March 1, 1892, interest payable semiannually on 1st September and 1st March of each year; the note bearing 10 per cent. per annum interest, and the interest made payable by coupons attached, to bear interest at 12 per cent. per annum after due. At the same time the note and coupons were executed the payer also executed a deed of trust to secure the payment thereof on certain lands described in the petition. It was provided in the deed of trust that, "* * * if any part of said debt or interest remains unpaid for five days after the same falls due, immediately thereupon the whole principal of said note, and the accrued interest thereon, shall become due and payable; and I, the said grantor, do hereby fully empower said trustee, original or successor hereunder, and it is hereby made his especial duty, at the request of the holder of said note, at any time after default, as aforesaid, to enter into and retain possession of or sell the above-described property, as a whole or in parcels, at public auction, either for cash or on credit, at the option of said trustee, or his successor, at the courthouse door of the county of Travis; * * * and, if any part of said debt or interest remain unpaid for six months after the same falls due, then the trustee may sell the said described property, or any part thereof, privately without advertisement." The amended petition of plaintiff below, filed May 8, 1891, set up the facts, the note, and in haec verba the interest coupons due 1st September, 1890, and 1st March, 1891, and, as ground for maturing the entire amount, set up the foregoing stipulation in the deed of trust, and its breach by the nonpayment of the coupon due September 1, 1890. In the third section of the answer of defendant below he set up that about the 25th day of January, 1891, an agreement was made between the parties that, if defendant would make an assignment to plaintiff of the current rents on the Rock Hotel in Burnet, Tex., and a ranch of 600 acres, owned by defendant, in Burnet and Lampasas counties, Tex., then accruing to defendant, plaintiff would accept the same in full satisfaction of balance of accrued interest due by defendant on the interest coupon maturing on the 1st day of September, 1890; and that, in pursuance of such agreement, defendant made the assignment of the rents of the property for the year 1891, amounting to the sum of $30 per month for the hotel and $250 per year for the ranch, and authorized plaintiff to collect the rents as they became due, and to apply the same to defendant's indebtedness aforesaid; "and thereupon, and in consideration thereof, the said plaintiff undertook, promised, and agreed with this defendant that it would not institute suit to foreclose the mortgage described in plaintiff's petition, but would forbear to bring such suit on account of the failure of this defendant to pay the interest due September 1, 1890." To this, plaintiff replied, on June 3, 1891, that it did take an assignment of the rents mentioned merely as additional security for the interest maturing on the 1st of September, 1890, and the amount paid by it in liquidation and settlement of premium of insurance policy, and that it had succeeded in collecting, on the 22d day of March, 1891, $30, stated in original petition, and that no further sum has been paid by defendant or his tenant. But plaintiff further replied that, if it should be held that it took the assignment of rents in payment of the balance due on the interest coupon due September 1, 1890, — which is denied, — then plaintiff alleges that the interest maturing on March 1, 1891, has not been paid when due, whereby the whole debt matured under the stipulation in the deed of trust, setting up particularly the stipulation, and invoking it as a ground for suit for the whole debt. Plaintiff, by its suit, set up claim for amount paid by it on insurance of some of the property mortgaged, provided for in the deed of trust to be paid by it in case defendant failed to do as he agreed to do. Trial was had before the court without a jury, and judgment was rendered, on June 23, 1891, for plaintiff for the $3,000 due on the note, $359.04 interest, and $30.90 balance due on insurance premium paid by plaintiff, all aggregating $3,389.94, and $268.60 attorney's fees, all to bear interest at 10 per cent. per annum; foreclosing lien upon the mortgaged property, as prayed for, and granting order of sale, etc.; awarding all costs against defendant, except those arising from attachment proceeding, — writ levied upon land by plaintiff, which was quashed, — which are adjudged against the plaintiff. Defendant has brought the case up by writ of error. The court below filed conclusions of fact and law. There is no statement of facts in the record.

The findings of the court are as follows:

"Facts.

"(1) All the allegations in the plaintiff's amended original petition, filed May 8, 1891, up to and including the fifteenth section or paragraph, are true. (2) That the allegations in the plaintiff's first supplemental petition, filed June 3, 1891, to the effect that the interest coupon note maturing March 1, 1891, has not been paid, is true; and, according to the express stipulations contained in the deed of trust, therein described and sued on, the failure to pay said coupon note for said interest matured the entire debt. (3) The evidence does not sustain defendant's plea of usury. (4) That the allegations in the third section of defendant's answer, as to the assignment of rents accruing to defendant on certain property, and the implied agreement by plaintiff, in consideration of such assignment, to forbear suing, are true. But said agreement did not embrace any definite time of forbearance. Said assignment and agreement were made February 3, 1891. (5) The plaintiff, acting by C. H. Silliman, its general manager, sued out an attachment herein, and caused the same to be levied on the real estate in Taylor county, belonging to defendant, as alleged, which attachment was recorded in that county as prescribed by law; which attachment, on motion of defendant, was quashed, because the affidavit upon which the same was issued was not in compliance with the statute. (6) Defendant employed counsel to represent him in this suit, and contracted to pay therefor $250.00, and the expenses of said attorney while attending the court, which amount to $50.00; and defendant himself has expended $50.00 in expenses attending this court in this cause. (7) Defendant testified that the levy of the attachment on his land in Taylor county prevented him selling five acres of it at $150.00 per acre; but he did not show that the land is not still worth $150.00 per acre. And it was also shown that said land, when levied on, and at the time of the contemplated sale, was incumbered by a mortgage lien. (8) This suit was instituted April 4, 1891. (9) The allegations in the fifth...