Southern Home Building & Loan Ass'n v. Winans

• Decision Date: 15 December 1900
• Citation: 60 S.W. 825
• Parties: SOUTHERN HOME BUILDING & LOAN ASS'N v. WINANS et al.
• Court: Texas Court of Appeals

60 S.W. 825

SOUTHERN HOME BUILDING & LOAN ASS'N v. WINANS et al.

Court of Civil Appeals of Texas.

December 15, 1900.

Appeal from district court, Wilbarger county; G. A. Brown, Judge.

Action by H. S. Winans and another against the Southern Home Building & Loan Association. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

James E. Doran, T. L. Camp, and L. A. Carlton, for appellant. Huff & Hall, for appellees.

HUNTER, J.

This suit was brought by Henry S. and George M. Winans against the appellant, a corporation organized under the laws of Georgia, to cancel a certain mortgage and bond given in the sum of $5,000 for loaned money, executed by appellees to appellant on the 17th day of June, 1890, upon the ground that the contract was usurious, and that, applying all payments to the principal of the debt, it was extinguished. The defendant denied that the contract was usurious, and by cross action impleaded Noble and wife, Fox, Houssels, and the Red Store, a corporation, and asked judgment against each one for the full amount of the balance of the debt, with interest, etc., claiming a balance due of $1,906.50, and for the foreclosure of the mortgage on the property given as security, which had been, since Winans mortgaged it to the association, sold and conveyed by Winans to Noble and wife, by Noble and wife to Fox, by Fox to Houssels, and by Houssels to the Red Store. This cross action was based upon the recitals contained in the deeds, as follows: In the general warranty deed from the Winans to Noble and wife, dated December 31, 1890, the consideration is expressed as follows: "Six thousand three hundred and forty-eight dollars to us in hand paid, the receipt whereof is hereby acknowledged, and the further consideration that the vendees assume the balance on the obligation of the vendors in the Southern Home Building and Loan Association of Atlanta, Ga., which is a first lien on the property herein conveyed, amounting to eighty dollars per month for the next seventy-four months, beginning with January, 1891, have granted," etc. That in the general warranty deed from Noble and wife to Fox, dated August 23, 1895, the consideration is expressed as follows: "$350.00 paid in cash by W. W. Fox, the receipt of which is hereby acknowledged, and the assumption by the said Fox of the mortgage held by the Southern Home Building and Loan Association of Atlanta, Georgia, upon the land described in said deed, as said mortgage was assumed by us; and the said Fox assumes and agrees to pay said association and be liable for said loan in all respects as we are or might be ourselves." That in the general warranty deed from Fox to J. H. Houssels, dated May 26, 1896, the consideration is expressed as follows: "In consideration of the sum of $490 paid and secured to be paid by John H. Houssels as follows: $490 cash, and the assumption of the payment by said Houssels of a lien or mortgage executed to the Southern Home Building and Loan Association of Atlanta, Ga., by H. S. Winans and Geo. M. Winans, of record, pages 390 to 394, vol. 4, Deed of Trust Records of Wilbarger County, Texas, upon the hereinafter described property, according to the terms of said instrument. [Here follows description of the property.] But it is expressly agreed and stipulated that the mortgage above mentioned is retained against the above-described property, premises, and improvements until the above-described mortgage and all interest thereon are fully paid according to its face and tenor, effect, and reading, when this deed shall become absolute." That in the general warranty deed from John H. Houssels to the Red Store, dated June 26, 1896, the consideration is expressed in exactly the same language as is contained in the above deed from Fox to Houssels. All these deeds were duly recorded on or about their dates, respectively. The case was tried by a jury, who returned the following verdict: "We, the jury, find the contract between the plaintiffs, Winans, and Southern Home Building & Loan Association for $5,000 is usurious, and that all sums legally due thereon by H. S. and G. M. Winans have been paid; and we further find that said association should take nothing in its cross action against the defendant John H. Houssels, the Red Store, or W. W. Fox." Judgment was so entered, and appellant has brought the case here for revision.

It is well settled that the usury in the original contract, if any, cannot be pleaded...