Texas Farm Mortg. Co. v. Rowley

98 S.W.2d 854
CourtCourt of Appeals of Texas
DecidedOctober 9, 1936
DocketNo. 13418
StatusPublished
Cited by4 cases

This text of 98 S.W.2d 854 (Texas Farm Mortg. Co. v. Rowley) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Texas Farm Mortg. Co. v. Rowley, 98 S.W.2d 854 (Tex. Ct. App. 1936).

Opinion

DUNKLIN, Chief Justice.

On the 11th day of April, 1923, Mrs. Elizabeth Rowley, a feme sole, borrowed $5,000 from the Texas Farm Mortgage Company and executed her note therefor, payable on the 1st day of January, 1934, with interest at the rate of 7½ per cent, per annum. The interest so charged was evidenced in part by coupon notes in the sum of $300 each, payable annually, representing 6 per cent, interest on the principal, and in part by a note in the sum of $804.17, payable in annual installments on the 1st day of January of each succeeding year. Contemporaneously with the execution of the $5,000 note and the obligations for interest and in order to secure payment of the same, Mrs. Rowley executed two mortgage liens upon certain lands situated in Denton county. One of those mortgages, which will be hereinafter referred to as the first mortgage, was given to secure the principal of the no.te and the interest coupon notes in the sum of $300 each. The second mortgage was given to secure the payment of the note for $804.17. Both of those mortgages were duly acknowledged and filed for record in the deed records of Denton county on the 20th day of April, 1923.

On May 8, 1923, the Texas Farm Mortgage Company executed a deed of assignment to the Travelers Insurance Company of the $5,000 note, together with the interest coupon notes in the sum of $300 each, and the mortgage lien given to secure the same. The other note for $804.-17 was retained by the Texas Farm Mortgage Company.

This suit was instituted on June 30, 1934, by Mrs. Elizabeth Rowley and Art Schlofman and wife, who had purchased the land described in the deed of trust from her, against the Texas Farm Mortgage Company and the Travelers Insurance Company, seeking a judgment decreeing that the $5,000 note and the deed of trust given to secure the same stipulated for the payment of usurious interest and applying the same as credits on the principal of said note and requiring the defendants to accept the balance due after allowing such credits in full satisfaction of the loan and mortgage given to secure the same; and further decreeing a cancellation of the two deeds of trust upon plaintiffs’ tender of the balance so remaining unpaid.

The two defendants joined in a general demurrer to plaintiffs’ petition, which was overruled, but the Texas Farm Mortgage Company did not file an answer to the merits of plaintiffs’ suit. The Travelers Insurance Company filed an answer to the merits, consisting of a general denial, alleging that it had paid delinquent taxes on the land described in plaintiffs’ petition in the sum of $608.01, and by cross-action it sought a judgment over against the plaintiffs for the balance due on the note after allowing credits for interest paid thereon, plus the amount of taxes so paid by it.

The court entered judgment sustaining the plaintiffs’ plea of usury, finding that [856]*856plaintiffs had paid as interest on the loan the sum of $3,279.20, which the court credited on the principal of the $5,000 note above mentioned, leaving a balance due on that note of $1,720.80 of said principal, which the court found the plaintiffs had tendered into court. There was a further finding that the Travelers Insurance* Company had paid $608.01 taxes on the land covered by the deed of trust for and in behalf of plaintiffs. It was further decreed that if plaintiffs should tender into court the $1,720.80 plus the $608.01, aggregating $2,328.81, within ten days from the date the judgment should became final, then the notes mentioned above and the liens given to secure the same should be canceled; but further decreeing that in the event of plaintiffs’ failure to pay said sums of money into court, then the Travelers Insurance Company should have and recover from plaintiff Mrs. Elizabeth Rowley the sum of $1,720.80 and 10 per cent, additional on that amount as attorneys’ fees plus the sum of $608.01 taxes advanced by the Travelers Insurance Company, aggregating the sum of $2,500.89 with foreclosure of its deed of trust on the land described in plaintiffs’ petition for that sum.

From that judgment, both defendants have prosecuted this appeal.

The first deed of trust stipulated that it was given to secure the payment of the principal and interest of the $5,000 note, with this further stipulation: “It is understood and agreed, that the party of the first part will promptly pay, as the same fall due or become payable, all State, County, Municipal and local taxes, assessments and charges that are now or may become a lien upon the property described herein; all state, County, Municipal and local taxes, assessments and charges now or hereafter laid or charged upon or against the promissory notes herein mentioned in this Trust Deed, or the indebtedness secured thereby, at the place where the land hereinabove described is situated, the owner of said debt not then being a resident of the county or municipality in which said land is situated; all inheritance and other Governmental taxes, of any kind, whether Federal or State, and all other legal charges that may be assessed against the property herein, described or charged against the party of the first part or their assigns, and that for non-payment might become a charge or lien against the land herein described; and in default thereof the owner of the debt may, at his option, pay said taxes, assessments or charges, or any part thereof, and such sums so paid shall become an additional part of the debt secured hereby, bear the contract rate of interest, be payable upon demand and be secured by the lien of this Trust Deed upon the land herein described, and by subrogation by all the rights, liens, remedies, equities, superi- or title and benefits held, owned, possessed and enjoyed at any time by any owner or holder of any of said taxes, assessments or charges so paid.”

With these further stipulations:

“Now, it is further understood and agreed that if default be made in the payment of any indebtedness, whether principal or interest, herein provided for, when the same may become due and demand-able, or if default be made in any stipulation, agreement or covenant herein contained, then the vahóle of the indebtedness secured in and by this instrument may, at the option of the said party of the third part, or any holder of said notes, or other indebtedness secured hereby, without notice to said party of the first part, be declared due and payable, and the said party of the third part or any holder of said notes or any other indebtedness secured hereby, may proceed to enforce this Deed of Trust as hereinafter provided, or, at its, or his, option, institute proceedings respectively for the collection at law or in equity, of such amounts as may be then unpaid.” (Italics ours.)
“If default is made in the payment of any of the debts above described, or any portion thereof when due, or if any of the covenants or agreements herein set forth are not kept, then the said party of the second part, or his successor or successors hereunder, when so requested by the party of the third part, or any holder of said note or notes, or by any person interested in any other indebtedness herein provided for, may take possession of said property, and shall sell or cause the same to be sold, or so much thereof as may seem to him necessary to meet said indebtedness and the expense of executing this trust, including a commission of five per cent on the entire amount due and unpaid for his individual services.

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Related

Robertson v. Connecticut General Life Ins. Co.
140 S.W.2d 936 (Court of Appeals of Texas, 1940)
Insurance Co. v. Elizabeth Rowley
128 S.W.2d 20 (Texas Supreme Court, 1939)
Commerce Farm Credit Co. v. Ramp
116 S.W.2d 1144 (Court of Appeals of Texas, 1938)
Barton v. Kansas City Life Ins. Co.
98 S.W.2d 836 (Court of Appeals of Texas, 1936)

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Bluebook (online)
98 S.W.2d 854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-farm-mortg-co-v-rowley-texapp-1936.