Robertson v. Connecticut General Life Ins. Co., 1968.

• Citation: 140 S.W.2d 936
• Decision Date: 25 April 1940
• Docket Number: No. 1968.,1968.
• Parties: ROBERTSON et ux. v. CONNECTICUT GENERAL LIFE INS. CO. et al.
• Court: Court of Appeals of Texas

140 S.W.2d 936

ROBERTSON et ux. v. CONNECTICUT GENERAL LIFE INS. CO. et al.

No. 1968.

Court of Civil Appeals of Texas. Waco.

April 25, 1940.

Rehearing Denied May 30, 1940.

Appeal from District Court, Bosque County; O. B. McPherson, Judge.

Suit by George P. Robertson and wife against the Connecticut General Life Insurance Company and another to cancel a debt and deed of trust lien, wherein the named defendant reconvened. From an adverse judgment, plaintiffs appeal.

Affirmed.

Conforming to answers to certified questions, 137 S.W.2d 760.

H. J. Cureton, of Meridian, and W. V. Dunnam, of Waco, for appellants.

Bryan & Maxwell, of Waco, and Read, Lowrance & Bates and Hamilton, Lipscomb, Wood & Swift, all of Dallas, for appellees.

ALEXANDER, Justice.

This is a usury suit. George P. Robertson and wife brought this suit against Connecticut General Life Insurance Company and Dallas Bank & Trust Company to cancel a debt and deed of trust lien on the ground that the contract provided for a usurious rate of interest and that the payments which had been made as interest were sufficient to discharge the principal debt. The Connecticut General Life Insurance Company reconvened and sought judgment for its debt with foreclosure of its lien. The undisputed facts and the material findings of the jury are as follows:

On October 15, 1909, Robertson and wife executed to A. H. Kahler a note for $3,500, due in five years and secured by a first deed of trust lien on the land in question. The record does not disclose the rate of interest borne by this note but it is asserted in the brief that it bore 8 per cent per annum. In addition, said deed of trust contained a provision requiring the debtors to pay the taxes assessed against the note or bond under certain conditions. This tax clause will be set out in full later. At the same time they executed a second lien to secure the payment of a note in the sum of $353.30, payable in five annual installments to cover additional interest on the principal note. The principal note above referred to was assigned to National Life Insurance Company on November 29, 1909, and was later assigned to United States Bond & Mortgage Company on October 16, 1914. On November 1, 1914, Robertson and wife executed and delivered to United States Bond & Mortgage Company a deed of trust to secure the payment of a note in the sum of $3,500, due on the 1st day of November, 1919, and bearing interest at the rate of 6½ per cent per annum. This note was secured by a first deed of trust lien on the land in question, which deed of trust contained the tax clause above referred to, requiring the debtors to pay taxes assessed against the note and bond under certain conditions. Presumably it was given in renewal of the balance due on the 1909 note. On the same day the debtors executed a second deed of trust to the same concern to pay a note in the sum of $350, payable in two installments of $175 each, but the record does not disclose when these installments were due. The evidence does show that one of these installments was paid in 1915 and the other in 1916, and it may be inferred therefrom that they were payable during said years. This second note purported to represent a part of the interest charged on the first note. The principal note was assigned to National Life Insurance Company on November 30, 1914, and was later assigned by that company to Dallas Trust & Savings Bank (now Dallas Bank & Trust Company) on June 16, 1920. On October 22, 1919, Robertson and wife executed to Dallas Trust & Savings Bank a note for $3,500, due on 1st day of November 1924, bearing interest at 6 per cent per annum. This note was secured by a first deed of trust on the land in question, which contained the tax clause above referred to. Said deed of trust recited that the note therein secured was given in lieu of and in extension of the note previously executed to United States Bond & Mortgage Company, which note had been taken up and extended by Dallas Trust & Savings Bank at the request of the debtors. At the same time the debtors executed a second deed of trust to secure the payment of five notes in the sum of $35 each, payable annually, which notes purported to represent a part of the interest charged on the principal note. The principal note last above described was assigned to National Life Insurance Company on May 8, 1920, and was reassigned to Dallas Trust & Savings Bank on November 5, 1924. On November 1, 1924, Robertson and wife executed to Dallas Trust & Savings Bank a note for $7,500, due November 1, 1934, and bearing interest at the rate of 6 per cent per annum. This deed of trust securing the same contained the tax clause above referred to. It recited that said note was given partly in lieu and extension of the balance due on the note executed in 1919, and that the Dallas Trust & Savings Bank, at the debtors' request, had advanced the money necessary to take up and extend said indebtedness. The balance of said loan, $4,000, represented new money advanced to the debtors at the time of the execution of the last lien. On the same day, Robertson and wife executed a second deed of trust to the same creditor to secure the payment of five notes for $75 each, one payable each year as interest on the principal note. The principal note last above referred to was assigned to Connecticut General Life Insurance Company on February 4, 1925. All of the notes above referred to provided for interest at 10 per cent per annum after maturity and the deed of trust securing same provided for acceleration of maturity in certain contingencies. The Connecticut General Life Insurance Company is a foreign corporation and during all the years that it owned the note here sued on, its home office was in Hartford, Connecticut. Said note was serviced by the Dallas Trust & Savings Bank, a Texas corporation, from 1925 to 1931, but during all the years in question, 1925 to 1934, said note was kept at the home office of the holder in Hartford. The debtors paid the interest installments as they accrued to the various holders of the several first lien notes up to and including the year 1930 and a part of the year 1931. They also paid the second lien notes to the holders thereof as they accrued.

The jury, in answer to special issues, found that in the preparation of the loan contract of date October 22, 1919, and in the preparation of the loan contract of date September 22, 1924, the Dallas Trust & Savings Bank did not intend to exact or receive from the debtors a greater rate of interest than 10 per cent per annum; that Dallas Trust & Savings Bank was the owner of the principal note in the sum of $3,500 of date November 21, 1914, at the time the same was renewed and extended in 1919; that the note for $3,500 of date October 22, 1919 was owned by Dallas Trust & Savings Bank at the time the same was renewed and extended by the contract of date September 22, 1924; that the principal note executed in 1924 was accepted by the Dallas Trust & Savings Bank for the purpose of resale to investors and that in the preparation of said contract said creditor intended to require the debtors to pay all such taxes as might thereafter be levied against said note by the city and county of Dallas and state of Texas; that the Connecticut General Life Insurance Company purchased said $7,500 note, of date 1924, with the intent to require the debtors to pay such taxes as might be assessed against said note; that from the year 1931 to 1936, inclusive, the Connecticut General Life Insurance Company, which was a foreign corporation, maintained a general office in Texas in the city of Dallas, but that the rate of the tax assessed by the city of Dallas, county of Dallas, and state of Texas, plus the interest as provided in the note of date September 22, 1924, during any one year, would not be an amount in excess of 10 per cent as interest on the amount of said $7,500 note; and that the debtors, in the execution of the loan contract of 1924, did not intend to thereby waive the privilege of thereafter interposing the defense of usury to any of the loan contracts above referred to. Upon motion, the trial court rendered judgment non obstante veredicto in favor of Connecticut General Life Insurance Company for its debt with foreclosure of its lien and denied plaintiffs the relief prayed for.

It may be that the 1914 contract, because of the "squeezing in" of the installment payments on the second lien note, making the whole thereof payable during the first two years of the contract, and the provision for acceleration of maturity in certain contingencies, was usurious under the holding of the Supreme Court in the cases of Shropshire v. Commerce Farm Credit Co., 120 Tex. 400, 30 S.W.2d 282, 39 S.W.2d 11, 84 A.L.R. 1269, and Dallas Trust & Savings Bank v. Brashear, Tex. Civ.App., 39 S.W.2d 148, Id., Tex.Com. App., 65 S.W.2d 288. See also Lincoln National Life Ins. Co. v. Anderson, 124 Tex. 556, 81 S.W.2d 1112, 1113. But if we should hold that contract, or either of the others that were executed prior to 1924, usurious, the debtors would not be entitled to have payments made by them as interest on said prior contracts credited to the principal of the note now held by Connecticut General Life Insurance Company, because all of such payments were made prior to the execution of this last note and none of them were made to the holder of the last note. The record discloses that all payments made on the 1909, 1914 and 1919 contracts were made to the National Life Insurance Company. About the date of the maturity of the 1919 note, the exact date not being definitely established, National Life Insurance Company, who had become the owner of said note and who had collected all interest payments thereon, reassigned said note to Dallas Trust & Savings Bank on November 1, 1924, and the debtors renewed said indebtedness by executing a new note, being the note here sued on, to Dallas Trust & Savings...