18 S.W. 424 | Tex. | 1892
February 2, 1885, one J.H. Davis executed a note for the sum of $1300, payable to the order of plaintiff in error, secured by a deed in trust on certain real estate, and due two years after date, with interest from date until paid at the rate of 12 per cent per annum. The interest was payable annually, and the note stipulated, that "upon default in the payment of the interest for any year the principal of this note is at once to become due and payable." The note further provided for 10 per cent additional as attorney fees if legal proceedings be instituted on this note to collect the amount due by it. Default was made in the payment of the interest due February 2, 1886; and thereafter, on March 30, 1886, J.H. Davis was adjudged to be a person of unsound mind, and B.A. Hoyt, defendant in error, became the legally appointed and qualified guardian of the lunatic. The note was placed in the hands of attorneys for collection, and by them was, on December 4, 1886, presented to the guardian, properly proved up by affidavit made by one of the attorneys, including the claim for 10 per cent attorney fees. The claim was on December 7, 1886, approved by the guardian, except as to the demand for 10 per cent attorney fees, which was rejected. Mrs. M.A. Morrill, therefore, on December 8, 1886, instituted this suit against the guardian to recover the entire amount of the note, principal, interest, and attorney *60 fees. The defendant answered, admitting the facts stated, but denied any obligation for attorney fees, on the ground that legal proceedings had not been instituted for the collection of the claim. April 14, 1887, after the bringing of this suit, the guardian paid on the principal and interest of the note the sum of $1640, duly indorsed as a credit. March 19, 1888, the court rendered judgment for the plaintiff for the sum of $20.21, the balance of the principal and interest due on the note after deducting the payment made. The court further adjudged that plaintiff should pay the costs, holding that the proving up and the presenting of the plaintiff's claim by her attorneys did not constitute the institution of legal proceedings.
By virtue of a writ of error the judgment is before us for revision.
Before the presentation of the claim default had been made in the payment of the annual interest due February 2, 1886. The note had therefore, according to its terms, matured. Machine Works. v. Reigor,
We have been anticipated by this court in the decision of this question, in the case of Simmons v. Terrell,
We therefore find that the judgment of the lower court is erroneous. The plaintiff was entitled to recover 10 per cent of the amount, principal and interest, due on the note April 14, 1887, the date of the payment of $1640, and in addition 10 per cent of the balance, principal and interest, due at the date of the trial, March 19, 1888, after deducting the payment, the entire amount so adjudged to bear interest at the rate of 12 per cent per annum from March 19, 1888, with foreclosure as prayed for in the petition.
We recommend that the judgment be reversed and here rendered, ill accordance with this opinion.
Reversed and rendered.
Adopted January 19, 1892. *61