53 Fla. 1046 | Fla. | 1907
On October 3rd, 1905, the appellee filed a bill in equity in the circuit court for Manatee county for the foreclosure of a mortgage on certain
The court overruled a demurrer interposed to the bill on the grounds that (1) it contains no equity; (2) it does not appear that complainant is the owner of the note and mortgage; (3) 'it does not appear that the complainant has any title to the note and mortgage; (4) the interests of the defendants to the property are not particularly described.
A replication was filed and testimony was taken before a special master. The decree “ordered, adjudged and decreed that the defendants are indebted to the complainant in the sum of $4,683.00 for principal and interest heretofore accrued upon the notes described in the bill, and in the further sum of $400.00 for reasonable attorneys’ fee incurred by the complainant in this proceeding, and in the further sum of $23.50 due said special master fo^ his services herein as well as for the costs of this suit.” An appeal was taken. The following errors are assigned: (1) In overruling and in not sustaining the demurrer to the bill; (2) in overruling and in not sustaining special
The principal note is as follows:
“No. 306. United States of America, $4000.00.
Real estate coupon note. Ten per cent semi-annúally, Negotiated by A. T. Cornwell. Braidentown, Florida, January .5, 1904.
On the first day of January, 1910, for value received, I promise to pay to the order of W. B. Fitts, the principal sum of four thousand dollars, lawful money of the United States of America, with interest thereon, at the rate of ten per cent per annum, until fully paid, payable semiannually on the first day of January and July in each year according to the tenor of interest notes of two hundred dollars each, bearing even date herewith, hereto annexed. Both principal and interest payable at Braidentown, Florida, and if default be made in the payment of any interest note, or any portion thereof, for the space of ten days after the same becomes due and payable, then all said principal and interest shall, at the option of the said W. B. Fitts or the legal holder hereof, become due and payable without further notice.
John A. Graham.
Nina H. Graham'.
$193.00. Interest Note. .
Braidentown Fla., January 5, 1905.
On the first day of July, 1905, for value received, I promise to pay to the order of W. B. Fitts one hundred
Nina H. Graham.”
The mortgage contains “this express condition, that if the said John A. Graham, his heirs, executors or administrators, shall well and truly pay unto the said party of the second part, his heirs, executors or administrators or assigns, the-said sum of money represented by the above described note, together with the interest accruing thereon, according to the tr ue intent and meaning of said note, and shall pay all taxes and assessments that are or may be laid upon said premises before the same shall become delinquent, together with all costs, charges and expenses, including a reasonable attorney’s fee, which the said party of the second part may incur or be put to' in collecting the same by foreclosure or otherwise, that then these presents, and the estate hereby granted, shall cease, determine and be absolutely null and void.”
The mortgage contains a provision for the payment of the note of $4,000.’0& “with the interest accruing thereon,, according to the true intent and meaning of said note,” but it does not contain the provision incorporated in the note that “if default be made in the payment of any interest note, or any portion thereof, for the space of ten days after the same becomes due and payable, then all said principal and interest shall, at the option of the said W. B. Fitts or the legal holder hereof, become due and payable without further notice.”
The case here presented is unlike the case of Maxwell
The note and mortgage Avere executed at the same time in one transaction relating to the same subject, and the mortgage refers to the note, therefore they should be considered together in determining their meaning and effect. By construing them together as parts of one contract, the provisions of the principal note as to when it shall become due and payable, Avhen taken with the provision of the mortgage that it is given to secure the payment of the note Avith interest “according to the true intent and meaning of said note,” it is clear- that the provisions of the note control. 2 Jones on Mortgages, section 1179a; Fletcher v. Daugherty, 13 Neb. 224, 13 N. W. Rep. 207; Kleinsorge v. Kleinsorge, 133 Cal. 412, 65 Pac. Rep. 876. The note constitutes the written evidence of the indebtedness and the terms of its payment are stated therein. The mortgage was given to secure the payment “according to the true intent and meaning of the note.” The bill alleges a default in the payment of interest, and that the complainant exercises the option given him: by the note and declares all interest and principal due to be due and payable at once. The note does not require notice of the
Th6 bill alleges that the notes and mortgage were executed by the defendants to the complainant, and this is a sufficient allegation of the ownership and interest of the complainant to authorize the suit.
Where a bill to foreclose a mortgage is brought by the original payee and mortgagee against the original debtor and mortgagor, it is not necessary to specifically allege that the complainant is the owner of the note and mortgage.
The payment of interest on overdue installments of interest, evidenced by separate coupon notes for interest on the principal, does not constitute usury, and such interest is recoverable upon coupon notes after their maturity, which were given at the time of the accrual of a debt, for the interest accruing threon; for, being promissory notes, it is only just that if not paid when due, they should draw interest, by way of damages for the detention of the money. The debtor can avoid such interest on interest by paying the interest when due. Stickney v. Moore, 108 Ala. 590, 19 South. Rep. 76; Crider v. San Antonio Real Estate, Building & Loan Ass’n, 89 Tex. 597, 35 S. W. Rep. 1047; 1 Page on Contracts, section 475.
The defendants by their answer, the oath thereto being waived, aver that the loan was negotiated through A. T. Cornwell, who was the agent of the complainant for negotiatingloans and not the agent of the defendants; that said A.T. Cornwell, the agent of complainant, only paid over to defendants $3,600.00, although said agent demanded and required defendants to execute the note for $4000.00; that said agent of complainant reserved $400.00 claimed by him as commission for making said loan, whereby the contract became and was and is usurious. Mr. Graham, in his testimony, stated that Mr. Cornwell paid him $3,-800.00, retaining $200.00 as commission. A preponderance of the testimony was to the effect that Mr. Cornwell acted as the agent of Mr. Graham, and not as the agent of the complainant. This being so, the amount retained by Mr.
This disposes of all the points argued for the appellants.
The decree is affirmed.