Southern Home Building & Loan Ass'n v. Thomson

• Decision Date: 16 June 1900
• Parties: SOUTHERN HOME BUILDING & LOAN ASS'N v. THOMSON.
• Court: Texas Court of Appeals

58 S.W. 202

SOUTHERN HOME BUILDING & LOAN ASS'N v. THOMSON.

Court of Civil Appeals of Texas.

June 16, 1900.

Appeal from district court, Parker county; J. W. Patterson, Judge.

Action by J. R. Thomson against the Southern Home Building & Loan Association to remove a cloud from plaintiff's title to certain property, for cancellation of a debt claimed by defendant against him, and for the application of payments already made to the discharge of that debt. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Bidwell & Stennis and Pruit & Smith, for appellant. Alexander & Fain, for appellee.

HUNTER, J.

The nature of this suit is well stated in appellee's brief, and is as follows: "Thomson filed this suit on January 31, 1899, against appellant, to remove cloud from title, as stated in appellant's brief, and for cancellation of debt claimed by appellant against him; for application of payments to discharge of debt, charging the bond or note contract to be usurious; alleging payment of $1,225, the amount borrowed being $1,000; and seeking to recover $450 as statutory penalty, being double the amount of usurious interest paid in excess of principal debt. Thomson alleged, in substance, that he was desirous of borrowing money from defendant, and that defendant represented that it would loan him money at 6 per cent. per annum, but that in order to procure a loan it would be necessary for him to subscribe for certain shares of stock in defendant association, and that, for the purpose of borrowing money, plaintiff subscribed for 10 shares of said stock, applied for a loan, and that on February 9, 1891, defendant loaned plaintiff the sum of $1,000, and he executed a written bond or note for the sum of $2,000, conditioned for the payment of $16 per month, $6 of which was named in said instrument as stock dues, $5 as premium, and $5 as interest, and that, while only $5 was named as interest in said contract, all of said monthly payments were interest payments, and were used as a device by defendant for the purpose of evading the usury laws of Texas; that the contract required the payment of said $16 per month and all fines for the use of the $1,000, which was about 20 per cent. per annum. He alleged the execution of the trust deed on certain real estate, with the bond as part thereof, and as a part of the same transaction, whereby defendant could declare the debt due after three months failure to pay said monthly sums; alleged the payment of the $1,225 in monthly installments under the usurious contract; and also alleged that defendant agreed by its agent to loan him money at 6 per cent., and that stock payments should be applied, as paid in each month, as a payment on the principal of his debt. Appellant answered by general denial, and set up the statute of two years' limitation in bar of recovery of usurious interest. By way of cross bill, appellant alleged the subscription for the stock, the loan of $1,000, execution of the $2,000 bond, the trust deed, declared the whole amount due, and sought to recover of plaintiff the $1,000 principal, $125 premium, $125 interest, $84.08 taxes alleged to have been paid by it on February 28, 1899, and 25 per cent. of the entire amount as attorney's fees, and asked for foreclosure of its lien for all of said amounts. It also pleaded different provisions of the by-laws of the association." The case was tried by a jury, and judgment was rendered for the plaintiff, and the defendant company has appealed.

There was competent evidence tending to establish all the material allegations in plaintiff's petition, and that the $84.08 taxes paid by the defendant company was paid after the debt, if the contract was usurious, had been extinguished, and, of course, the lien discharged; thereby rendering the payment...