*1 266 SOUTHWESTERN which possession zos tracts. Plaintiff does not claim tiff was to tention 5,595acres La Sierrita and Potrero the herein execution and the 627 acres were not included in the include those 5,595acres 5,595acres an effort was made age $22,380, the full two notes for the sum of three tracts which amounted to That it was land acreage from the fact that deed. La sideration acres veyed zos tracts, each with its metes and bounds clear- ly acre at that number of acres and aggregate $17,380. Evidently the 60 acres of chase being rita, land, he Don Sabas cluded in the language reserving and reserved but 627 acres. On the ants calculation conveyed were the number of acres in the lands from the only tended land, over cepted recorded in Book private said No. Cameron [1 part hereby made, set claims purchase Sierrita, tract, land 2] We survey, 'map, is the contention of the construction to be contend and the other did not known part controversy It is recited in the deed from this out, copied is described $4; he surveys for which 60-acre land. The land intended to the rate county, Texas, the same excepted made except the reservation hereof for better described in the think the it left pay, paid. Cavazos, and the whole number of acres of land 5,595 acres, undoubtedly conveyed. as Potrero de Don but also money. is obtained Espíritu description enter that from, did described, certain conveyance. grantors but out of abundant caution tract, and the same conveyance.” consideration named deed. 60 acres sued every and record A, pages not plaintiff from the Defendants of gross between the is, two tracts Cameron paid, $5,000 the land was sold J. J. the sale to into the containing by $4, and that in all show that the 60 acres attempt known as Santo described as tracts acre January 23, 1884, consisting de other As amount of the was to not of 627 per acre, by multiplying intended $8,690 each, Cocke, excepting certain amounting plaintiff was to 22 and description Don deed, things, conveyance is in- placed upon county, recited, which tract, special known as the only it was not in- hand, parties remained plaintiff, for, 627 acres of acres, Sabas Sabas Cava- any acreage 5,595 surveyor convey Potrero rediuce the at the hereby cash, known as land as of three all produces after the the deed reference excepted La appears defend- convey which short- plain- of, arises Cava- acres. things being "which Sier- pur- rea con- one and ex- in- de held not Rev. St. art. lected ants had remained loans, but, land in gal and when he from the it, and the collectible of fact rower amount of court was tion of the Const, tracts were the deed before veyance, acre circumstances in the deed. Plaintiff has received ants but the move doubt veyance, favorable rules of tate, 577, meaning the of relating subject-matter, ed, tracts were sonably (Court ous. exceeding long “The Usury Usury description, legally Loan contract parties rate is collected and evidence language employed, especially 11 S. W. executed conveyed intended section Not any ambiguities. transaction Oct. CREDIT CO. et term assignments as art. of the trial of Civil controversy La quite meaning admits of accepted <@==>45 but and intention of the <@=>42Long-term conveyance. to what only stated. use. construction, for the entire term justified 16, 11, when judgment grantors at the time maximum loans Sierrita specially excluded 1015a; .will language a while after the execution include the land in may the deed and § was Nov. for the deed should be combine to show that et allowable rate of — situation and condition of the —Distinction plaintiff him and for allow.” Devlin on payable 10 within 4980, fixing was intended to be exclud ux. v. COMMERCE may parol testimony 15 Am. St. the construction in advance on whether in fact judge in their properly Rev. Cravens v. to collection in advance tract, although defend Rehearing withheld is affirmed. deed was shown error specially legal “rate” finding well possession of the al. 1924.) could be Const, St. arts. nominally not asserted parties some confusion and parties adopt between short as the other (No. Texas. Amarillo. usurious, one admitted to re deed and which White, parties from the con from the con parol art. without Denied 2369.)* contract not of maximum exceeds as near the as the intention of they signed controversy of it. legally col- as attached to short term entirety. except any claim in matters after date of defend 803. the inten within long-time Real Es- he findings evidence grantee given FARM within usuri- every other § paid. what tract mer- bor- may sum two two le- n Digests Key-Numbered cases see and KEY-NUMBER in Indexes topic «SzzaFor granted February 4, 1925. of error *Writ *2 FARM CREDIT CO. 613 COMMERCE 3.W.) (266 money paid amount as interest on rate, interest as maximum annum jury in A resulted trial without exceed- loan ior entire collectible cent, though judgment ing for the defendants. on amount 10 payable term ex- certain chargeable pleaded proven for interest The facts and substan year; for amount ceeded tially plaintiffs as follows: The borrowed meaning pro- n word in statutes “rate” as used the sum of ants, from one of the defend according some stand- portional ard. estimation Company, the Commerce Farm Credit company and executed their note to the said for the sum of definitions, Words see [Ed. other Note.—Eor payable years after Series, Rate.] Phrases, and Second First and agreed date. been loan had (I) Appeals — cent, Civil Court of Courts <®=»9I 3. bear interest at the rate of 9 point Supreme Court on decide free to per annum. As evidence interest authority weight and on decisions conflict plaintiffs executed 10 interest each reasoning. better $252, payable annually, for which, the sum of decisions on Where seen, represented interest conflicting, involving point law were same per cent.; loan at 6 in additional same free to decide Civil held Court of squeezed equal terest “was into five annual authority weight bet- point and payments,” separate evidenced reasoning. and ter notes, payable each for one each proved Usury <§=>113 must —Intention period. the first 5 of the loan legal interest is for contract face in and the 6 only. coupons terest were secured lien rate on face for Where contract county. of trust on 'Hale deed land in These charge proved. interest,’ must be intent to provide instruments for Express provision Usury rebate- <§=>15 for — cipal indebtedness, option hold interest when acceleration of excess ment er, payment in case of default in the unnecessary to avoid enforced is clause against property taxes the assessed usury. or existence of the loan default in in While enforcement of acceleration payment any interest, or installment of permits to re- lender sometimes loan contract during period compensation in case of bor- the breach other covenants ceive usurious lender rebates unless rower in the tained of trust. express provision for re- unearned batement notes terest lien were secured a second unnecessary contingency is such property; this of trust same to avoid provides deed of trust case of default Rehearing. notes,1 for On Motion “in of said covenants, breach of computing Usury <§=>50 —Method agreements in said first deed long-term loan is usu- to determine whether hereby trust, secured the whole said notes stated. rious long-term pay- hold providing shall become er, becoming election of due for loan Whether plaintiffs evidenced *3 money per per wbicb 10 rious.” art. vides a annum shall usu- be deemed tlie amount 11; during Constitution, the loan art. bas the use R. § borrower and, highest merely pro- logically, rate This when the standard; is in law taken “rate” means the word interest allowable under advance, “proportional really rate exceeds estimation some the interest go Dictionary. also, into Century See, here standard.” Chase v. New York law. need not allowed the reasons applied We Railway as why Co., collection Y. advance 26 N. 526; Notes, paper ap- to be held L. R. is A. 1002. To to short-term ply nominally legal. But, the long-time within this standard there into interest must be taken when money loaned, on a in advance consideration the rate is collected period may loan, loan, usu the charged. transaction interest respect In But rious. See is not the mere collection vance above cited. material authorities we find no ad difference in our law and the laws of in a states one the decisions fact that in paid in larger period Supreme were Court, rendered. there is more Our own loan in Johnston, the ease of than for that terest amount Mills 23 Tex. 309- 330, usury year highest considering where it question rate that to at illegal; con a loan whether the that ran makes the contract tract is ing for more than as ascertain affected is determined usurious of commis- retention paid advance, sions should be in the interest collectible for whether which it was claimed regarded period in exceeds amount entire loan terest that could said: legally law, deciding “The whether a settlement (making proper principal de amount not, involves will look at the whole * * * for ad therefrom interest ductions amount of interest reserved and to period vance) the whole extended; the use of which the borrower had forbearance charges, properly imputable .if the period. during cited, authorities above See do not exceed the following: allowed addition thereto law, period forbearance, for the whole then Co., Garland v. Union Trust Okl. the settlement cannot be held to be usurious.” Johnston, 197; Mortgage P. 83 Okl. tive Loan American Clement Co. v. 247; 153, 201 Green v. Conserva P. Practically the same tdst was stated 13; Co., Ark. 240 S. W. Court in G. & Inv. Co. H. M.) Lyons (N. Investment Co. v. Grymes, 63 S. W. 64 S. W. 183; American Co. 218 P. Investment Seymour Opera 778. In the case of House (N. M.) P. 1037. These cases Roberts directly Thurston, Co. v. point. un We do wish to be Seymour S. W. Opera House Com necessarily approving con derstood pany, August 18, 1891, executed note for in the New readied on the facts clusion payable $4,000, tq the Panhandle for, cited; cases Mexico Company July 1, 1896, executing Trust in year, paid in for more than 1 wheth coupons payable semiannually terest terest for in inception during loan or er cent, per per the rate of 8 annum. running, might held well be time Opera As further on the loan the payments de that such should be Company gave $400, pay House its note for determining purpose ducted able during semiannual of $100 installments each principal bor of which amount of rower of the first of the loan. use the term provided struments on which interest is to in,case turity of default in purpose determining computed, note was can see no redson to be declared under such clause before making principle between distinction maturity. the contract date of The defend inception payments made at the advance the loan or pleaded usury. ant durr seen that period. time ing when the suggestion is, however, immaterial This here; payments made, being $100 semiannual that, if the whole conceded paying the debtor was as interest more than period of this loan to be taken into con (the 12 at that sideration, would be even time). The court held the advance are deducted if the usurious, saying: was not which interest this, “In cases like where the to de- suggested. is to be of the The contention due, in clare the debt case of default on the appellants during any if part the note, of the maker of the contained of 10 loan collectible the transaction contract, time of should not cent of the day be reckoned to the on which the ma- is, under usurious. turity our. declared, afterwards as contended appellants argue day by appellants, nection that our dif- fixed FARM CREDIT v. COMMERCE CO. (266 S.W.) maturity, ever, support appellants. good seem to faith for the written contract with matters, added, case, omitting grace it waived.” unless in were irrelevant Hall a note for executed error point writ Court denied payable payment by date, securing about 5 after directly in ease. The note This trust on land. here. bore interest at the rate of 6% rely Inter- v on Mathews annum, sume, edly annually, payable as- App.) 50 state Loan Association though point- appear it does not S. W. Bonner Civ Cain v. opinion, stated there was v Hall Shear 195, S. W. them App.) 2S5 to sustain Com. in case of default 6% proposition discussion. now under payments. annual the court did two cited *4 per loan, was an 8 cent. the other 1% periods dur- interest as different sider the of by represented annual interest was ing in tracts were loan. An examination of the the separate $148.80,payable pro- a note for con- those eases will disclose that the portionate period installments the of usurious, whether the the loan. This contained a maturity note computed over- entire contracted the of of declaration the whole the segregated to or with reference $148.80, pay- of case default periods are the The ment installments as be- considering discussed, do now was not so we by came due. This ond a note was secured sec- controlling effect, these not consider cases of lien, deed of trust on the same land particularly point has ex- since the securing that covered the trust deed contrary pressly Su- decided to the the $1,800 the note and interest. the cent 6% preme Court in the cases to. The On stallment in- default the case Shear v. will be Hall discussed becoming due on the the $148.80 proposition. connection with the second due, holder declared sold Seymour 2. The decision the case the land under the second lien trust deed Opera Thurston, supra, Co. House di- v. subject lien the other rectly tion, point appellant’s on conten- second It trust. was was claimed this sale against position. au- their it because was made under void a usurious that we have considered thorities jurisdictions, contract; upheld by was contention the exception, with one opinion on Court of the Commis- Gawley, v. 87 effect. Cissna Loan same Wash. Co. opinion Appeals. sion of The court in its 807, 438, 792, 1916B, P. L. 151 R. A. that, “whether said or was contract 1917D, 722; Union Garland Ann. Cas. v. op- inception, usurious in its its execution 197-201; 243, Co., 63 165 P. Okl. Trust usurious,” to make it erated “since 405, Wallace, D. N. W. 19 103 Goodale v. S. $1,800 $148.80 the extent of for 6 was collected on 962, 651, Cas. Am. St. 9 Ann. 117 months, more whch was rate of Idaho, 207, Tipton 134-138; Ellsworth, P. 18 109 v. than annum.” 17 re- With due Hart, 534, Ark. Eldred v. spect opinion court that rendered this notes, 213, 1917D, S. Ann. Cas. W. say we reasoning; must we do not follow in this it exception referred is the case of Maxwell $148.80 was collected as Improvement Co., v. 45 Fla. & Jacksonville Loan $1,800 loan, for 6 months 425, the case of 34 So. but as Building Real Crider v. San Estate Antonio period for the entire more than Association, App. years. a If there had been declaration of said : the court maturity $1,800 prin- and collection language might applica- cipal, have been assumption that contracts will “It is on the according stipulations by ble; forecasting performed their without a there upon them, suppo- parties to and not $1,- an be. advanced violated, they will their le- sition that principal note we not see was do it can how gality an be determined. It would be that the be in its contract made usurious anomaly of a make the violation legality was, time, operation. until It say you party, to a ‘If its test of —to simply a case of collection ad- of interest in perform your its is the be- vance. That fore us v. be case the facts require- valid, and merits presents. Co. decision of Shear law; you but, if fail to ments of the observe correct, can,-it us, Hall, if ipso illegal,’— provisions, seems to facto its becomes power one, by place upheld only ground it in the and thus that the wrong, legal agreement, his own breach of inception, usurious in its tract in that was performance, pun- and to its visit the to avoid ad- the collection of it authorized iniquity upon his own him whose ishment way to make vance in such party rights violated has violated. who he an dur- if 'there was acceleration should, suffer and held li- alone his contract ing turity period ma- a certain consequences of its violation.” able for since there was in-, providing Hall remission ease of Shear v. for a decision 195, does, how- terest collected in advance. The case Com. 235 W. S. (cid:127) SOUTHWESTERN

plicable here) 'for ment or remission of it for the contract. cipal England cording what we conceive deemed usurious.” The statutes mean the in the same that “all contracts for terest than House Co. stances, of mendation of to the opinion in writ of error additional already lect such ed the Co. v. Hall. We do not know unearned the loan. The contended that because the trust er, notes, usurious.’ pons, payable strued Default loan extended the interest was evidenced lection ment ey due and had been construed so strued as except upon cancelling conclusionof lied 12 L. “In ^[3] authority that secured” Shear Co. sustain decision implied does appellees tried, This thing. provided prohibitions R. and that it declaration disposition of so payment of Supreme point, whs made in we stated, payable, has been ” unearned a absence of a unearned A. If not sustain laws “the event as to language Shear Co. Hall language, .weight penalty feel thereby because in that ease with the decision There is the that to in the case and said: oyer v. Hall. Thurston, that in case rather opinion annually, decision. .authorize whole contingency. free contract should (that is, Court judge does Commission of of the ease. As we have usurious, interest) which will not be enforced for the entire contract for trust authorized the usurious interest in this Lewis indicates that Am. (and stipulation uniform better v. it seems “the whole to collect maturity, constitute the indebtedness. not make before interest collected the of Shear adopting per annum, the Constitution is option a declaration decide the case to authorize we St. Under the law, greater even express decision the be reasoning. be declared unearned we by interest cou Rep. 332, Seymour Opera gency. canot reconcile the construction to default whom the case there must be 14 S. if the contract be the was usurious v. given Court holder to several agree ‘is to be con- the usury the deed of vation of finally equally ap pass sum of us, the not be rate of Co. construing appellants, the lender. just what of interest provision language .sustains while, W. shall with circum the col- adjust weight to recom turity denied years; Shear with waiv lend mon Hall pay all, col the the S. W. ac the be v. re fer to lees that better reason and correct in case thority, think that such court are interest within the is not received laws, never of unearned permit vide ed tion ment of interest *5 property maturity they the no room for tion curity. country face, ease tion of short-time loans the acceleration clause in such intend templation Where, cover take usurious Slaughter apparent; there must corrupt agreement, an contract on its face This Gawley, supra, Waggener, be consequences intention not borrower was not usurious. than the law of of for such rebatement are then but as imports enforced usury; pay, and collection principal money. in some secured the lender to receive more holding we conclude breach of covenants unpaid the indeed, is usual for contracts for the loan It is the, to take interest in excess of the lawful rate unconscionable.” will not the failure to make of the borrower to the further use 21 S. invoked, because of the holding took but act Co. v. 708; res connection. or make tender of thought the full contract security, contention an-incident interest on knowingly the generally held, presumption, to the use and that it was in the ipsa interest; W. cases, Pet. Henry renders as it unless there conclusion out interest proved are custom the banks and other authorities cited Eller so virtue of they infer provisions principal such allows bona parties.” liens on loquitur. that such to the extent that contract, upon' secured. meaning or device of the regarded accrues; or default in the to forfeit the the legal interest, do great weight itself contracts. urged to contract for that there for if R. to fide 9 L. the trial it The forfeiture and Sansom, declaration corrupt for the result the borrower not a Oissna an C. D. the forfeiture in such contin the unnecessary principal, real indebtedness for the is a contract to Bank impairs in such Ed. But, expressly pro the accumula The effect contracts sustained period; neither the money contracts, might p. rebatement innocently, agreement. use of court was Dugan compensa “penalties App.) 196 was. view Since we preserva Tex. Civ. intent shift, personal full right advance there the appel- it usury cases, reser be U. party loan C. some or only, they pay very con pay has au Co., are the. of- his of, .to se V. .of 'if to C. pal. method of plaintiffs new follow this period, no through period, crediting the accrued During for opinion, $420. Under have been term.” h’e the rate such basis question payment, calculated at the should principal tliem Cas. amount should ducted ful, provided put straight that would $504. Under our appellants’ tion figures general Clark v. exceed trouble in tion that said. We term amount and in contract cessitates say Affirmed. Appellants’ full term rehearing allowable, applicable withdraw where loans, For the because which oral rule not our then that would be making On Brown, had the use of any stage to such determining reduced to 15 R. applied attorneys maintaining cent., process for the end lead it. The Motion usury. the rate was argument that, if the loan ran turity; 10-year period, first under our the contract end of which the attorneys it matters (Tooke Bonds, indebtedness that, second they amount, to the case this admission contracted taken understanding of in, C. D. applied rate when could time, event usurious. theory, intend to Tex. through run it application even if purpose contend such it would conceded calculation that rate sum v computations $3,687.17. together holding think is the correct p. 31), Rehearing. due at say of the loan never be 212; notes, not what now. $4,200; stating more, would paid, highest allowable through less than reduction loan and wit, we start would suit. understand conclusion, and there would announces show that calculated in their paid, always figure excess of with the “any their motion $420 bar, because we settling the sum Thereafter amount to a usurious go their mo- Tex. form what computa- This ne- preclude compute amount, time did If that of this COMMERCE with submit princi is the 5-year briefs long- Ann. law- rule rest full you (266 our the money. de- of of i.w) had been the other authorities which we made the note usurious. funding press for the use or detention of the the be carried out amounts; $2,520 paid during the the express years; Lubbock there was an pay agreement tingencies, maker of the note would exercise prior under the 14 W. 332, v. Lewis and our own right ion, in our consideration of this matter. *6 though it is not make the contract usurious.” Parks v. our cipal. own accounting the end of the to have the annual the interest at 10 culation and the earned interest this the $3,687.17, duces should, during the latter determination not that would be allowable under Overruled. contrary calculation, charged equity maturity borrower to retain the opinion become correct, remaining $1,843.55 interest on the holding. case. a total of FARM to the contract agreement hand, such result There is thus no a sum in excess of the appellants argue and the court held this $3,687.17 as a condition to the paid provision accelerate the at the rate of 12 That is not the case anything Lubbock, paid, the amount exercising authoriy total for a forfeiture But for the unearned back necessary the contract is not usurious. CREDIT date of the note. off interest for We did not overlook this 12 L. A.R. would have toas mentioned so that the express $7,980. we in that distinguishable theory in our prevent years years for the detention of the balance due on provides, for the in the contract that $8,050.72. pay compute principal, note under this method whether this to declare the note due date CO. cent. to determine whether holding. express agreement agreement on which it is based more than the is incident So opinion, event, the last right, except upon the holder of the of the note “does to its forfeiture makers, the former in certain con of the interest If the contract exercise maturity, $1,843.55. cited, since and matured 51 W. here, the ease Am. and, from In Parks There pretermit thus an money. if agreement for its re S. deficiency after' following Tex. right our St. not a court to the sum to on the Dugan of un order opin case, does and, .617 pro pay cal- our $3,- ex At an no If ment by annual interest etc. The notes annually, representing representing notes, payable $1,008. years, for 2 total per cent., per payable and 5 notes by appellants propositions relied years, rendered first five contract for general conten- under two reversal fall years, usurious because of such deter- must be tions; First, since the borrowers by computing per cent., mined contract, during required by the first 5 highest legal running through rate, and loan annually years cent, crediting period, on five notes loan as usurious; is, under our the contract second, Appeal Court, Coun- Hale District the loan Joiner, Judge. ty; R. C. because, loan under against Shropshire E. Suit J. and wife the lender under shortened Company and Farm Commerce Credit clause, result collec- acceleration plain- Judgment defendants,, others. tion the contract ready appeal. tiffs Affirmed. al- of interest rebatement contingency. case of collected Baird, Oxford Oxford M. J. & all n propositions these Plainview, Johnson, will discuss Oxford & of Ste- phenville, appellants. order stated. Terrell, Davis, state McMillan, [1,2] no law in Huff & of San 1. We Antonio, Martin, to collect unlawful Williams Plain- & makes advance; allow appellees. view, even where able rate loans, BOYCE, brought has J. short-time rule, evidencing suggested under limit suit to a usurious, certain cancel generally allegation usu held it was transaction App.) 43 S. Pahde Civ. and also recover Webb the rious. double Key-Numbered Digests topic and Indexes see other oases and KEY-NUMBER <S=oEor 266 SOUTHWESTERN Building Loan 19; Geisberg from that Mutual ferent terms of the states W. WS. were rendered. which the decisions cited Association Obviously provide pp. tlie 225, 226. Our Constitution statutes L. 27 R. C. “greater of interest contracts for a retention or decreases