Hardin v. Ross

Mobtgages. Trust deeds. Right to attorney fees. Where default was made in the payment of the amount named in a trust deed and the trustee at the request of the beneficiary advertised the land for sale, but before the date fixed for the sale, a third party bought the land covered by the trust deed and tendered to the trustee the amount mentioned in the deed of-trust, interest thereon, and the accrued expenses for advertising and the trustee’s fees, which the trustee at the instance of the holder of the indebtedness secured, refused to accept but demanded attorney fees in addition. In such case the attorney fees not being mentioned in the trust deed though named in the note evidencing the debt, and the purchaser of the land having no notice of such fees being included in the debt secured, the trustee was wrong in refusing such tender and the purchaser of the land having enjoined the sale by the trustee, the beneficiary could not recover attorney fees for defending such suit since their wrong caused the litigation and the attorney’s fee, all of which was unnecessary.

Appeal from the chancery court of Calhoun county. HoN. J. G. McGoweN, Chancellor. Suit by W. EL Hardin and another against J. F. Ross- and another. Prom the judgment rendered, plaintiff appeals. The facts are fully stated in the opinion .of the court. The contention of the appellants is: First, that having elected to foreclose in pais that attorney’s fees were not allowable. Authority: Turberville y. Simpson, 47 So. 784, predicated on authority of Tompkins v. Drennan (Alabama), 10 So. 638, which last please read carefully; second, attorney’s fee was not allowable even on the dissolution of the injunction, because it is expressly provided, section 623, as to what damages were allowable to wit: five per cent, and attorney’s fee was not mentioned among them, it being simply a ease of five per cent, damages; third, this decree gives statutory damages and attorney’s fees; fourth, in view of the fact of the unwarranted and almost criminal interference on the part of Boss with the attempts of Caldwell to sell his land as shown by his testimony, as well as the testimony of the witness, Seales, that the allowance of attorney’s fees and damages in this case should not be permitted by a court of conscience; fifth, he was tendered before suit in equity the full amount of his demand, and he refused to accept' it. He was tendered again after he had joined issue and denied the allegations of the bill and again refused to accept it; sixth, it was not so much the question of tender as' the question of the right to demand an attorney’s fee, in view of all the facts and circumstances of the case. I quote from appellants’ brief as follows: “It will thus be seen that the sole issue in controversy is as to the question of the allowance of attorney’s fee.” Accepting the issue as thus defined by appellant, and I am sure there could be no other issue, I shall address my argument solely to this point. .The cases cited in appellants’ brief, I respectfully submit, are not applicable in the case at bar. In this case the question is not one of the allowance of trustee’s fees and attorney’s fees both, nor is this a case where the property embraced in the deed of trust is personal property in which title and a proper record thereof is not important, nor is this a case where all that was done was to advertise and sell under the provisions of the deed of trust. In this case there was litigation and a decree of foreclosure by a chancery court, all while there was no tender. The tender made prior to the filing of the hill was ineffectual, because it was not kept good and no benefit thereunder ■can he claimed since the money was not produced and placed in the custody of the court so that it might he awarded to the proper party, until the trial was in progress. Smith v. Williams-Brook Company, 71 So. 648. That counsel fees provided for in a note may he •collected is well settled in Mississippi. Gulport, etc., Company v. Augur, 48 So. 722; Bank of Duncan v. Brittain, 46 So. 163. In the case at bar the proceeding originally was in pais and afterwards was a proceeding in chancery for foreclosure, and we think the attorney’s fee is due in this case, regardless. of whether it was due prior to the institution of the injunction suit. Some point is made by appellants because the record of the deed of trust did not show that the note provided for attorney’s fees. It certainly was sufficient to put them on inquiry and certainly they knew when they filed their injunction bill that the note provided for attorney’s fees. Believing that the decree of the lower court is correct and is supported by the facts and the law we respectfully submit that this case should be affirmed and since it is an appeal from a money judgment, the decree here should he five per cent, damages in addition to the principal and interest on the original judgment, against the appellants and the sureties on their appeal bond.