Richardson v. Campbell

• Decision Date: 16 October 1889
• Citation: 27 Neb. 644,43 N.W. 405
• Parties: RICHARDSON v. CAMPBELL.
• Court: Nebraska Supreme Court

27 Neb. 644

43 N.W. 405

RICHARDSON

v.CAMPBELL.

Supreme Court of Nebraska.

Oct. 16, 1889.

Syllabus by the Court.

1. A promissory note was given to be due five years after date, with interest from maturity at 12 per cent. Coupon notes were given for the interest on said note. When the note was given the highest rate of interest allowed by statute was 12 per cent., but before it became due the maximum rate had been reduced to 10 per cent. Held, that the holder was entitled to the highest rate allowed by law when the note became due.

2. Where the interest provided for in a promissory note is the maximum rate allowed by law, and is represented by coupon notes providing that interest shall be allowed thereon after maturity at the maximum rate, no interest will be allowed on such coupons.

Appeal from district court, Johnson county; BROADY, Judge.L. C. Chapman, for appellant.

S. P. Davidson, for appellee.

MAXWELL, J.

On February 11, 1888, the plaintiff filed a petition in the district court of Johnson county, and afterwards, on May 10, 1888, filed an amended petition, stating his cause of action to be that on February 29, 1876, James A. Campbell, defendant, executed for value, and delivered to Ann M. Shephard, five promissory notes, one for $600, due five years after date, and four other notes, for $60 each, due in two, three, four, and five years after date; that on the same date defendant, James A. Campbell, duly executed unto said Shephard a mortgage on N. 1/2 of section 20, township 4, range 12, to secure said notes, which mortgage was duly recorded; that by a stipulation in said mortgage in case of foreclosure an attorney's fee of 10 per cent. on recovery, which was agreed to be a reasonable fee, should be paid by defendant, and included in the decree; that by the stipulation contained in said mortgage if the land was sold for taxes said mortgagee might redeem the same, and pay taxes, and add the same to the debt secured by the mortgage with agent's fees of 10 per cent.; that before any of said notes became due, the same were indorsed by said Shephard to plaintiff, who has ever since been the owner and holder thereof; that default has been made in the payment of said notes; that default has been made in payment of taxes on said land; that plaintiff has advanced and paid out of his own funds the money necessary to redeem said land from tax-sales, and in the purchase of an outstanding tax-title against said land; that all said indebtedness for said notes, and for taxes paid, and for outstanding title purchased, is due and unpaid. The plaintiff prays that said mortgage may be foreclosed, the land sold, and proceeds applied to the payment of said indebtedness, costs, and attorney's fees. On July 13, 1888, James A. Campbell filed his separate answer, setting up a defense as follows: He admits the execution of the notes and mortgage, but avers that they were given on a usurious contract for a loan of $600, at the rate of 20 per cent., entered into between P. D. Cheney and Ann M. Shephard, by B. F. Perkins, their agent, and this defendant; denies that plaintiff purchased said notes before due; denies each allegation in the petition not admitted or answered. For a second defense denies that plaintiff has redeemed said land for taxes mentioned, or that he has paid the taxes on any part thereof; alleges that the tax deed was fraudulent and void, because no seal was attached to it; alleges that the land was sold for tax of 1875 only, when other taxes were due; that all claims for taxes paid are barred by the statute of limitations, as well as all claim upon said notes and mortgage. The plaintiff filed a reply which need not be noticed. The court rendered judgment for plaintiff for $1,305 upon the notes sued on, being interest at the rate of 10 per cent. on the principal note; also the face of the interest notes, without interest; also for $379.40 upon three tax-sale certificates, being the amount of their face, less 50 cents, and interest thereon at 7 per cent. from their date, being a total of $1,684.40 due plaintiff; also an attorney's fee of $95. In all other respects the court found for the defendant. The...