*1 proposition raising appellant’s fourth point is sustained. (3) to raise is- sufficient The evidence disability under which sue as whether suffering appellee was caused is now previous injury Febru- he received which propositions ary, 1929, appellant’s 7 and arid raising point are sustained. findings of fact are These three additional may not be neces- end
sary Supreme to Tremand the Court further consideration this court for case to Supreme over- should Court the event ruling is insuffi- evidence rule delay filing the claim to excuse cient until December 5, 1930. delay issue such The evidence developed fully necessitates rer has been therefore unnec- It is rendition. versal propositions essary other us to consider purely by appellant raise presented they questions were sustained of law remanding -only case for require
retrial. shown, re- reason For the appel- in favor of rendered here versed and lant. et MANNING. al. v.
CHRISTIAN 12780.
No. Appeals Fort Texas.
Court Civil Worth. 4, 1933. Feb.
Rehearing March Denied granted. oí error
*Writ
235 money the amount of borrowed from the loan company, wit, $15,000, pleaded and further payments certain made as interest which they sought to have decreed as on credits principal note. I). I'ayne, Floydada, appellants. II. plaintiff Both and the Federal Life Insur- Goggans Ritchie, Dallas, & and Homer Company replies plea, deny- ance filed to that Baughman,' Worth, appellee. L. Fort ing any usury and the Federal Life Insurance Company sought establishing a decree its lien DUNKLIN, principal Justice. sum of and two of of coupon 1,1 notes Nos. September 20, 1922, Christian and J. D. series, unpaid, the first which were as a wife, a executed subsisting valid and lien on the Floyd land as land on 640 acres situated against Christian and wife and as first county in favor Loan of the Conservative superior plain- lien to that claim Company payment of of Texas secure the tiff, seeking but no foreclosure. promissory their note of even date therewith January principal Upon sum judgment due a trial of the case a 31, 1933, overruling plea usury; with interest thereon the rate rendered cent, per annum, annually, per payable awarding plaintiff recovery Y in- the three coupon coupon evidenced notes of even terest eleven notes sued on him in the principal aggregate date with the note and attached with foreclosure of the thereto, maturing January 1922, mortgage given same; the first to secure the also es- January tablishing mortgage on the others 1st of each suc- lien held the Fed- year thereafter, respectively, ceeding drawing of Company princi- all eral Life Insurance for the maturity pal unpaid from the rate sum of and the two cent, per per coupon notes, annum. terest Nos. 10 and subsisting as a valid and lien and At the same time Christian wife exe- superior plaintiff’s lien. The re- Company cuted to the Conservative Loan sev- finding cites that six of the interest cou- en other notes for additional interest on the pon principal notes attached to the note for note, each, $450 for the sum six paid by 1Nos. 6 had been payable January 1,1924, the first due Christians. day January one succeeding due due the '1st of each year, and another note for usury presented $300 Whether or not the January 1930. Another deed of trust the Christians should have been sustained contemporaneously principal question was executed the is with to be determined deed of trust first mentioned to secure the here. payment additional of those notes and cov- $15,000,drawing The note for interest at ering same Each land. of those seven cent, per per annum, payable the rate of 7 maturity paid bore until annually according attached, interest notes cent, per per annum, pay- at the rate of 10 able provision: this further cent, annually, provided per for 10 “The sum of this note shall bear attorneys’ additional as payment, torney fees on default of pay- interest after the same becomes due and placed in if the hands of at- an per per able at rate of ten cent annum given mortgage for collection. The paid. until stipulates those secure “If any default be given subordinate to be interest, installment of either or for the note. Three of the interest due, any when or if of the covenants con- :the seven additional .note. .this (cid:127)est afirst parties n .and pay.” ¡on ¡effect n due said the rights ¡of said first cuted servative be well and the interest cured terest on said denced the second ance different amounts gregating ¡become under the with interest was further Christian has all contained be then and in cost of first accrued on said been gage, party, to debtedness and cessors or days ance, kind in condition vided, n “Thisdeed The second “And On the “If .said the premiums the Federal Life or of the covenants third coupons attached to that taxes, provision: this instrument Company against paid by and towit, are thereof, and the said on ac'count its successors mortgage then at the event of $15,000 premises that it is due made in the said said payable according trial it was subrogation granted mortgage. part aforesaid; by charges $5,783.66, assigns, assessments, provisions party, its successors deed that coupons truly paid, as the same becomes and the party, first said the seven notes mentioned faithfully of secured, parties notes herein described and se- thereon hereby agreed paid to the Federal Life the agreed that interest on the all mortgage note a breach of note, principal and interest trust, however, note, as a entitled insurance, note, shall become null principal event payable. of trust were for interest of party, said second property, and at different sums secured remains option of if shall which cost he even date herewith exe- which agreed by or additional to the inter- every shall attached to the Insurance payment and the said as part and all advances all sums advanced or hereof trust, given secured only, assigns, kept premiums on insur as hereinbefore above hereby have any of Texas for agreements herein first of the be released kind, and interest [*] * unpaid defendant J. O. to the or which any that and secured notes, $15,000- shall be installment become counsel party, charge of note; provided, party the been by is shall part covenant or said second conveyance any performed, agreed subject shall have times, tenor and all this agrees to secure whole the first party contains assigns, to Con- as evi- default applied its suc $15,000 First Nat’l note at once herein, due, Insur- thirty mort paid, void, $15,- then pro any ag- in- all in by of 000. in or it defaulted to an innocent 79 Tex. first to right because under the statute ated. Commerce Trust App.) 135. And tice ton v. ception and cannot be vitalized Nat. Bank due and series condemned note or deed and as settled cy to exact usurious of the interest is Cotton en to secure once, without notice.” the same shall become due and on the Commerce Farm Credit S.W.(2d) effect trust notes, of, immediately terest on said first lien note above herewith in the sum of to Conservative Loan or lations in said first of of interest by cured which subject contains this holder of hereby out notice.” option, declare “Failure Each of those notes for additional interest its terms and of the terms of the “This is one of a series of seven W. the notes' J. Christian and creditor Greenwood. matured If at D. The perform to secure securing Beatty (Tex. 54 that, shall, question said by v. The secured 120, declare all of that series to payable, aggregating 282, all S.W.(2d) Cooper (Tex. the the above described deed of a note record that as a certain thereon, Bank v. deed of trust is a second if The court will (Tex. leading under of of hands the same it payment 39 notes herein January provision: usurious; pay by by any the purchaser. S. W. 1031. that trust the here involved is due and time the mature S.W.(2d) 11, opinion all the is usurious, The rule there the terms of shows that Civ. notes. this any of the covenants 1037; Civ. payment option whole of series, subject Wayburn, mortgage, or interest, in mortgage interest collected. Cot Company wife, note failure App.) supposable Com. App.) accord therewith Co. v. payable Co., all authorities, in lies $15,000.00, innocent borrowers Of Ledbetter v. of secured or all credit Gilder v. this state of to the defense of is 120 of this series the that, App.) the holder any in the loan 162 W. that 31 W. the sum Best of the second the borrowers said notes payee or the deed of of 81 Tex. void whole is viti Shropshire of even at of Texas. immediately indebtedness Tex. S. its transfer installment pay promissory announced, payable at due or if purchaser, *3 may series contingen described, once with- 209 S. (Tex. according power had or notes se- lien, and any part is to the had Hearne, bearing- -by 400, the will its in 57, 1007; stipu- at his First here- trust 840; date also Jus Civ. giv $3,- any W. in- be 16 30 of v. Company seeking first in the No. of defaulted Federal subrogated rights pur- to the be notes attached series $15,000 of holders of chase-money amounting then the notes secured vendor’s right property controversy, mature on lender would have had the it was together alleged up note were taken loan to thereon, appellants here, with addition to the accrued drawing interest then terest, support series due on the second and evidence was offered in notes, allegation making although inter- of est of all total filed here briefs borrowers, owing by presented by any in addi- counterprop- not borrowed, appellants’ ac- assignments. tion osition of Neither cording to the strict letter of the the deeds of trust referred to above con- *4 rogation may by ; them. And terms of the the right, it that noted here hence that if enforceable at all, pay- solely in equity sup- second default would be one in and ported by coupon at- interest $15,000 ment of the the sole of fact that the loaned give applied the was note would tached to the holders tional at once due. to the satisfaction of those ven- an addi- dor’s lien being right equi- the second series of notes of notes. That a right ty, upon the second series company to declare all of it was incumbent the loan showing to make a clear the therefor under equity practice. place, rules of the In the first to the Chris- Interest the loaned represented by sum, so advanced tians, by was their note for that evidenced the of loan, the note September 20,1922, sued on herein from the date of the maturity January 1, 1924, under the terms of that note and the deed of to the date of the it, securing right the holder a to of the first coupon notes, cent, the of of second series judgment irrespective per computed and foreclosure the rate of 10 subrogation annum, equity, doctrine per highest of the the rate allowed statutes, seeking $2,009.17; holder is would amount enforce that contractual right deducting subrogated stipulation and to be that sum from the amount cent, per which the lender for 8 could have demanded on interest in the The old notes. 1924, January 1, equity when he could have declared maxim that he who seeks must come supposable the due under entire debt the con- applicable into court with clean hands is tingencies noted, $2,- would leave subrogation. a balance the equi- claim seeking One 045.S3,representing ty the amount of interest cannot be po- heard to assume inconsistent 5071, excess Civ. Statutes. the limit fixed article Rev. sitions. chargeable The lender was with knowledge that the notes taken for the loan appellants sep- provided made to the Even if the second series be considered for usurious interest, contrary independently the statutes. arately With that knowledge, payee only the the it exact- not could have took the notes so taint- January 1, 1924, $5,783.- ed on of ed but later was excess demanded and $955 collected cent, highest legal applied per the 66 terest and the rate of on the same on such holding up date; upon has elected insist loan to that and that vice plea usury. the same in in and vitiated the interest evidenced denial series of notes tainted the second the right alleged a the Therefore waiver of the subrogation conclusively first series. was shown un- proof controverted, whether such waiver was stipulated in all We that conclude Equitable intended or not. Life Assurance the first and "both second series of interest Ellis, 506, Co. v. 105 Tex. S. W. appellants’ was usurious therefore S. W. 625. n contracts pay as same were void Company, Accordingly judgment Conservative of the trial court payee claiming all as- others the same as entirety is reversed in its and in order that signees, including plaintiff, Manning, may judgment J. there issues purpose be one final settling all and the defendant involved, Federal Life Insurance the cause is remanded for the Company; that the amounts heretofore allowing the Federal Life Insur- paid by appellants as interest on the opportunity ance its to amend note, aggregating $5,783.66, applied pleadings get should be personal judgment order upon as a credit against appellants owing for balance note, leaving owing a balance thereon appellants above, on the as note indicated $9,216.34. sum of together attorneys provided with with foreclosure of the fees for in the mort- giv The second deed trust which was gage same, lien to secure the since solely en for usurious interest should be de past appears that such due. balance now to be null and void. creed trial And the court is render a instructed to disposition ap judgment Manning, In plaintiff, view of the final that J. peal shown, prop nothing against appellants as hereinafter we deem it recover for er plea discuss an him; alternative filed the three interest notes held promise recov- “When in an action for a Life Insurance debt new tlie Federal er coupon limitation, upon appellants is relied such nothing two avoid promise attached whether or after made before notes Nos. canceling complete, bar $15,000; cause for constitutes the upon *5 given It is insisted that since proper apply the usurious interest collect- to judgment and on which on secure the sued plaintiff ed tion them to reduc- under those recited that was based debt, done of his as was prior given in and extension of were vendor’s lien notes on renewal Appeals [149 the Court Civil W. 702J property, judgment.” in its plaintiff those ven- on entitled to recover was pointed opinion original in the As out in notes unaffected our on dor’s lien renewal nounced in Cain v. upon notes, hearing, plaintiff’s an- rule decisions suit was under the renewal original Bonner, 194 notes Tex. and not lien vendor’s Mortgage subject 874; notes, Federal to the defense A. L. R. and therefore 5. W. App.) usury (Tex. pleaded. Civ. is Bank conelusion which was That National Co. v. State Firmin, expressly foregoing 1002; deci- v. Bernheisel sustained 254 W. Wall. Supreme Court; S.) 170, Ed. (99 22 L. sion of and that would U. expressly plaintiff de- be true had even supra, Bonner, in an However, in Cain v. original lien an clared alternative or amended secure mortgage securing tained this note be note for sum each breached, then the entire indebtedness evi- 7, 8, and numbers and 9 of that series were hereby shall, option denced at the le- Manning, transferred to J. who instituted gal hereof, holder become at once due this suit recover thereon and to foreclose payable without notice.” mortgage given to secure the Christian Loan defendant the saíne. J. D. The deed of trust wife and secure that the Conservative provision: parties contains of Texas were made suit, and, later, the Federal party, “In the said second its succes- Company, acquired who assigns, any charge, sors and satisfies $15,000note from the Conservative Com- nature, property hereby whatever pany party Texas likewise became a de- conveyed, any make or shall advances for fendant. taxes, otherwise, premiums, insurance assessments or Defendants J. D. grantors Christian and wife filed to or on account of the suit, they pleaded herein, answer to the paid purposes, the amount so for such that all the notes including thereon, them to the interest shall be se- Conservative Loan with were tainted cured and shall be forthwith they provided pay- payable, in that party, due and said ment of than assigns, more its successors and subro- thereto or such gated “It any part payments to all tlie attached, of said have further rights or note or interest been made. especially taxes or party assessments, agreed coupons whom, foreclosure failure and conditions in protect interest on said first lien the lien of this trust deed perform any of said first or all first mortgage, of the mortgage, covenants then due, or or
Notes
of interest obligation the two series tained giving contractual right and the two deeds of executed to secure holder note that of sub-
action and must a recov- of interest be declared series ery. statute, pleaded, same. Since makes secure of trust executed judgment recovery upon impossible, also render the'barred The awarding court will debt trial upon promise Com- reliance Life Insurance the new overcome the Federal necessarily recovery against appellants pany limitation makes of it cause attorneys’ together action. $9,216.34, Otherwise action with there is no cause of balance of * * may provided with that be enforced. fees for in the note the rate interest from date of 6of “Having upon agree- declared the renewal annum, per foreclo- and with ments, plaintiff’s right recovery property upon sure controversy, measured him- them. He not could avail Feder- all claims of in full of subjecting his self of their benefits without Company, provided that al company they action The ny afforded. to the defenses which pray- pleading file an amended ordinary estoppel principles de- opinion relief; will be ing appropriation only to him their fa- for observance. to the trial court certified resting vorable results. With suit Rehearing. them, Appellee’s their necessari- Motion usurious character was ly an available defense. It was therefore
vendor’s Phillips, opinion by the follow- Chief Justice say pleading; ing said: was nothing probable of a additional defense originally brought, W. this suit was “As notes, limitation to the vendor’s “if the interest, up- due, with 6. Cain for a balance purpose of remanded for the should be amount of on a $3,000.00 lien contract mechanics permitting pleading decláring an amended Bonner and T. executed Charles those notes. It was wife of one Bothwell. in favor James years Accordingly, rehearing the ma- more than four the motion for instituted exceptions Special turity the contract. overruled. petition urged by the Bonners to Appellants’ Rehearing. Motion for ground limitation sustained. There- were 22, 1911, upon, February plaintiff, on appears Since the defendant up respective petition writ- amended set of J. Mrs. wife I>. Chris acknowledgments and ten renewals of the tian, a married woman the time was favor, debt the Bonners in his per executed, no notes sued on herein were acknowledgment by T. and also its Charles recovered, judgment against sonal her can through a letter. Bonner personal judgment therefore pro- original Bothwell trial is instructed render in the court contract “The rate conventional favor of the Federal cause vided for interest at obligations against only maturity. D. will be Christian The renewal J. from its stipulated plaintiff Mrs. Everil of and not defendant for the opinion Christian; defense of rate. The heretofore filed interest at usury * * * made. corrected that extent.