White v. Rourke

• Citation: 9 N.W. 689,11 Neb. 519
• Parties: O. W. WHITE, APPELLEE, v. JOHN O. ROURKE AND OTHERS, APPELLANTS
• Decision Date: 01 July 1881
• Court: Supreme Court of Nebraska

9 N.W. 689

11 Neb. 519

O. W. WHITE, APPELLEE, v. JOHN O. ROURKE AND OTHERS, APPELLANTS

Supreme Court of Nebraska

July 1, 1881

APPEAL from Cass county. Tried below before POUND, J.

AFFIRMED.

M Hartigan, for appellants.

W. S Wise and A. W. Crites, for appellees.

OPINION

BY THE COURT.

This is an action of foreclosure based upon a prom issory note, of which the following is a copy:

"PLATTSMOUTH, Nebraska, December 30, 1876.

"$ 400.00.

"One year after date we promise to pay to the order of W. E. Donelan, the sum of four hundred dollars, value received, with interest at the rate of twelve per cent per annum from date until paid. And if collected by suit we hereby agree to pay reasonable attorney's fees, and consent that same shall be taxed as costs and entered up as a part of the judgment.

"ELLEN her X mark. MCGUIRE,

"M. MCGUIRE."

"In presence of D. H. Wheeler."

On the 31st of August, 1880, the plaintiff filed a petition in the district court of Cass county, in which he alleges that at the date of the note, the makers thereof, to secure the payment of the same, executed a mortgage upon lots 7 and 8, in block No. 12, in the city of Plattsmouth, which mortgage was duly recorded on the 2d day of January, 1877; that on the 14th day of May, 1880, said note and mortgage were duly assigned to the plaintiff, and that on the 14th day of July, 1880, Ellen McGuire and M. McGuire conveyed the real estate in question to the defendants. The action was dismissed as to the McGuires, and the defendants herein failing to answer, a decree of foreclosure for the sum of $ 516.93 and costs, and $ 50 attorney's fees, was rendered by default. The defendants appeal to this court.

The principal cause of complaint is the allowance of the attorney's fee. The act to provide for the allowance and recovery of an attorney's fee in certain actions, approved February 18, 1873, provided for the allowance of an attorney's fee not exceeding ten per cent in cases wherein the mortgage or other written instrument upon which the action was brought, contained an express provision for such allowance. This act was repealed June 1, 1879, but the repeal did not affect contracts entered into prior to that time, and after the act of February 18, 1873, took effect.

The defendants claim as purchasers of the mortgaged premises without notice of the provision for an attorney's fee, as it is alleged that that provision is...