Pryse v. People's Building, Loan & Saving Ass'n

• Decision Date: 22 June 1897
• Citation: 41 S.W. 574
• Parties: PRYSE et ux. v. PEOPLE'S BUILDING, LOAN & SAVING ASS'N.
• Court: Kentucky Court of Appeals

41 S.W. 574

PRYSE et ux. v. PEOPLE'S BUILDING, LOAN & SAVING ASS'N.

Court of Appeals of Kentucky.

June 22, 1897

Appeal from circuit court, Lee county.

"Not to be officially reported."

Action by the People's Building, Loan & Savings Association against E. M. Pryse and wife to enforce a mortgage lien on real estate. Judgment for plaintiff, and defendants appeal. Reversed.

H. L Whecler, W. H. Holt, and H. C. Lilly, for appellants.

G. W Gourley, for appellee.

WHITE J.

This action was instituted by the appellee, the People's Building, Loan & Savings Association, against the appellant E. M. Pryse to enforce a mortgage lien on certain property in the town of Beattyville, Lee county. The amount of the debt to secure which the mortgage was executed is recited in the mortgage, and so claimed in the petition, to be $2,500. The appellee is a corporation duly organized under the laws of the state of New York, and it is alleged that by the terms of the contract the loan of appellant was to be paid in New York state, at Geneva, the home office. It is alleged that this sum loaned was to be repaid by the monthly payments of certain sums as dues on his stock, and as interest or premium on his loan. The contract provides, which is pleaded, that upon default of monthly payments, as provided, the whole sum should become due, and it is alleged that default had been made. It is also provided that, in case of suit to enforce the mortgage, a reasonable attorney's fee be included in the judgment, and paid by the appellant. The answer of appellant pleaded certain payments, amounting to $392.16, and further that he only received $2,250, and not $2,500, as recited in the mortgage; that the said $2,500 was on its face discounted 10 per cent. before he received any money; and pleaded that he only owed appellee the said $2,250, with interest at 6 per cent. from the date of the mortgage, less the several payments, to be credited as partial payments leaving due appellee about $1,849; pleaded the statutes against usury; denied their obligation to pay an attorney's fee of $250, as claimed in the petition, or in any sum. The court upon proof rendered judgment for appellee in the sum of $2,895.36, less payments amounting to $418.35 leaving the judgment for the sum of $2,471.01, but denied appellee a judgment or allowance for attorney's fee in any sum, and rendered judgment and order of sale of the house and lot in Beattyville....