101 Tenn. 306 | Tenn. | 1898
The original bill in this case was filed to enjoin a foreclosure of a deed of trust. It alleged that the complainant had tendered the amount due under the deed of trust, but that defendant had collected usury, and was demanding more, and seeking to collect a larger sum than was justly owing. Defendant answered, and denied that tender had been made, and said that he was aware he could only collect the proper amount owing, without usury. He filed a cross bill, and asked that the deed of trust be foreclosed for such amount, and an attorney fee, as stipulated in the * deed of trust, and also for another attorney fee which had been incurred in some negotiations for an extension of time. On demurrer to the cross bill, it was dismissed as to this latter fee of twenty-five dollars. On final hearing, the Court found the amount due, and held that while a tender had not been made, still defendant was attempting to foreclose his deed of trust for •more than was legally due; that the bill was therefore properly filed to enjoin the sale; and that defendant, under the facts, was not entitled to recover any attorney fees, but must pay all the costs except that of the sale. There was a decree of sale, and the property was sold, and bought by defendant, but, before the confirmation, complainants paid off the judgment and interest, and such costs as were
The only errors assigned in this Court are that the defendant was improperly required to pay all the costs except those incident to a sale of the property, and was denied an attorney’s fee for collection of the note by suit. The provision in the note as to fees is this: “We further agree that if suit is brought on this note, we' will pay all attorneys’ fees and costs of collecting. ’ ’ The note was signed by Tyler and wife, but it is doubtful, from its language, whether the mortgage recognizes this provision as to attorneys’ fees as a valid charge on the property for which a sale may be had. It does not do so in express terms, but perhaps by implication does, and we so treat it.
It is not denied that this provision is a valid and legal one in cases where suit is necessary and brought in good faith, and- the stipulation is not a device to cover up and collect usury. This is well settled. Parham v. Pulliam, 5 Cold., 497; Weatherly v. Smith, 6 Am. Rep., 663; Clark v. Jones, 9 Pickle, 643. But such fee is not collectible when suit is needlessly brought, or when it is brought to enforce an unjust de
It clearly appears from the holding of the Chan-' cellor and the findings of the Court of Chancery Appeals, that the defendant was attempting to foreclose his trust deed for an amount which embraced usury, and was greater than was legally owing, and that while defendant, in his cross bill, disclaimed any right of recovery for any amount b.eyond legal interest, still, in it he was not willing to give credit for such payments of usury as he incorrectly thought were barred by the statute of limitations. The cross bill was, moreovor, unnecessary, as the trust deed could have been enforced out of Court for the amount legally due. As to the costs, we are of opinion this question is settled' by the statute (Shannon, §4947), which is as follows: “If it be made to appear in the action that usurious interest has been intentionally taken or reserved, the person taking or reserving such usury shall pay full cost.”
It is clear, from the findings of the Court of Chancery Appeals, that the defendant did collect and reserve usurious interest, and that he sought to retain all the usury paid more than six years before
We see no reversible error in the decree of the Court of Chancery Appeals, and it is affirmed with costs.