55 Neb. 255 | Neb. | 1898
This was an action to foreclose a mortgage given by Telleren to the plaintiffs to secure four notes. Two had' been paid. The following is a copy of one of the remaining notes, default in the payment of which was alleged. The other was of like tenor:
“$280.00. Ida Grove, Iowa, October 20, 1885.
“On or before October 20, 1890, after date, for value received I promise to pay A. Hallam and P. Lloyd, or order, two hundred and eighty dollars, with interest thereon at the rate of eight per cent per annum if paid when due, ten per cent from date if not, payable annually at the office of A. Hallam, Ida Grove, Iowa. Should any of the interest not be paid when due it shall bear interest at the rate of ten per cent per annum, and a failure to pay any of said interest within thirty days after due shall cause the whole note to become due and collectible at once. It is also stipulated that a justice of the peace shall have jurisdiction herein to the amount of $300, and*257 should suit be commenced to enforce the collection of this note a reasonable sum shall be allowed as attorneys’ fees and taxed with the costs on the cause.
“Otto Terebren.”
Boughn had bought the land after the mortgage Was executed, his deed excepting the mortgage from the covenant against incumbrances. It is shown by the evidence that in fixing the purchase price there was deducted from the agreed price the amount of the notes with interest at eight per cent. A tender was pleaded by Boughn, and the evidence showed that Boughn had offered to draw his check to Hallam for the principal of the notes with interest at eight per cent, but had tendered no money, nor had he actually drawn the check, Hallam! stating that he would not receive it. Boughn says that this occurred about the time the notes matured, but does not pretend to fix the time accurately. Hallam testifies that it occurred long after maturity. Defendants certainly failed to make good the plea of tender at maturity. The only positive proof is that it was later. The district court held that only eight per cent simple interest was recoverable, without an attorney’s fee, and found that there had been a sufficient tender of the amount due, awarding a foreclosure for the sum so determined and awarding costs against the plaintiffs. Plaintiffs appeal.
The petition alleges and the proof shows that the notes were made and payable in Iowa, and that by the law of that state such a provision as that in the notes for the taxation of attorneys’ fees is valid and enforceable. But such a provision is a stipulation for costs and refers to the remedy. It is not a substantive part of the contract itself and cannot be enforced in another jurisdiction. (Security Co. v. Eyer, 36 Neb. 507.) The decree of the district court was right in that respect.
The question of interest is different. The law of Iowa on that point is neither proved nor pleaded and must therefore be presumed to be the same as our own. (Fitzgerald v. Fitzgerald & Mallory Construction Co., 41 Neb. 374.)
As it was not sbown that any tender was made at maturity, and as the plaintiffs would be entitled to ten per cent interest after maturity, and Boughn tendered only eight per cent, if anything, it is unnecessary to decide whether the predeclared refusal of Hallam to accept that sum excused the failure to make an actual tender. .The tender was in amount insufficient. It was insufficient for another reason. Interest was payable annually and interest installments were overdue. The note provided that interest not paid when due should bear interest. This provision is valid when the whole amount so reserved does not exceed ten per cent simple interest. (Mathews v. Toogood, 25 Neb. 99; Murtagh v. Thompson, 28 Neb. 358; Richardson v. Campbell, 34 Neb. 181; Lewis Investment Co. v. Boyd, 48 Neb. 604.)
It is argued that Boughn cannot be heard to assert that any part of the contract was illegal, because he ássumed the payment of the debt and is estopped to deny its validity. He merely took the land charged with the mortgage and in computing the amount to be paid withheld from the vendor the amount of the incum-brance, calculating interest at eight per cent. He did n'ot withhold anything to which the vendor would be entitled, because of a miscomputation. His acts did not change the character of the mortgage nor increase its amount. There is no estoppel in the case.
The decree must be reversed and the cause remanded with directions to enter a decree for an amount to be determined by allowing interest on the principal debt at the rate of eight per cent until maturity, ten per cent thereafter; also by allowing interest at the rate of ten per 'cent on unpaid interest installments from the time they became due; no further compounding and no attorneys’ fees; but costs should be taxed against defendants.
Reversed and remanded.