Morrill v. Hoyt

• Decision Date: 19 January 1892
• Citation: Morrill v. Hoyt, 18 S.W. 424, 83 Tex. 59 (Tex. 1892)
• Parties: MORRILL v. HOYT.
• Court: Texas Supreme Court

18 S.W. 424

MORRILL v. HOYT.

Supreme Court of Texas.

January 19, 1892.

Commissioners' decision. Section B. Error from district court, Dallas county.

Action by M. A. Morrill against B. A. Hoyt, guardian of J. H. Davis, to foreclose a trust-deed. Plaintiff appeals from a judgment in her favor imposing costs on her. Reversed.

Dickson & Moroney, for plaintiff in error.

TARLTON, J.

February 2, 1885, one J. H. Davis executed a note for the sum of $1,300 payable to the order of plaintiff in error, secured by a deed in trust on certain real estate, and due two years after date, with interest from date until paid at the rate of 12 per cent. per annum. The interest was payable annually, and the note stipulated that "upon default in the payment of the interest for any year the principal of this note is at once to become due and payable." The note further provided for "10 per centum additional as attorney's fee if legal proceedings be instituted on this note to collect the amount due by it." Default was made in the payment of the interest due February 2, 1886; and thereafter, on March 30, 1886, J. H. Davis was adjudged to be a person of unsound mind and B. A. Hoyt, defendant in error, became the legally appointed and qualified guardian of the lunatic. The note was placed in the hands of attorneys for collection, and by them was on December 5, 1886, presented to the guardian, properly proved up by affidavit made by one of the attorneys, including the claim for 10 per cent. attorney's fees. The claim was on December 7, 1886, approved by the guardian, except as to the demand for 10 per cent. attorney's fees, which was rejected. Mrs. M. A. Morrill, therefore, on December 8, 1886, instituted this suit against the guardian to recover the entire amount of the note, — principal, interest, and attorney's fees. The defendant answered, admitting the facts stated, but denied any obligation for attorney's fees, on the ground that legal proceedings had not been instituted for the collection of the claim. April 14, 1887, after the bringing of this suit, the guardian paid on the principal and interest of the note the sum of $1,640, duly indorsed as a credit. March 19, 1888, the court rendered judgment for the plaintiff for the sum of $20.21, — the balance of the principal and interest due on the note, after deducting the payment made. The court further adjudged that plaintiff should pay the costs, holding that the proving up and the presenting of the plaintiff's claim by...