Hatcher v. Kinkaid

Opinion by COLLIER, C. (after stating the facts as above). Plaintiff in his brief, at page 18, makes the following statement as to the actual question presented for our consideration: “The only question involved is a question of law. The only question of law that concerns Lindsay Kinkaid and Maudie Kinkaid, and of which the plaintiff in error, C. H. Hatcher, Jr., complains is the following: Should the written contract of January 27, 1911, be construed as if said contract had been signed and executed on January 15, 1912, the date of the trial and decree by the district court; in other words, should the attorney’s fees and interest on the A. Arthur mortgage, the E. B. Petty mortgage, and the- Union Trust Company mortgage from January 27, 1911, to January 15, 1912, in the sum total of $1,082.16 be deducted from the purchase price, that is, be paid by Lindsay Kinkaid and Maudie Kinkaid, or should said sum of $1,082.16 be paid by C. H. Hatcher, Jr., under said written contract set out on page 15, case-made?” The contract of sale provided that the sale was to be made subject to any recorded mortgages; that the amount of such liens was to be deducted from said purchase price of $10,500, and the remainder paid by plaintiff to the Kinkaids within 90 days from the date of said contract. Plaintiff, with consent of the Kinkaids, within a few days after the execution of said contract, took possession of said property and began building thereon. Plaintiff, just prior to the expiration of the 90 days from the date of said contract, tendered to the Kinkaids the amount claimed to be due them under the contract, and demanded that they execute to him a deed to said property, which the *169 Kinkaids declined to do, upon the ground that plaintiff had not paid the mortgages which he contracted to pay, and that in one of said mortgages property other than the property sold to plaintiff was involved. But it does not appear from any view of the case that any loss or injury came to plaintiff by reason of the refusal of the Kinkaids to execute the deed demanded by plaintiff; plaintiff at all times being in the undisturbed possession of said property and enjoying its income and profits. The contract of sale executed by and between plaintiff and the Kinkaids is plain and unambiguous, and it is impossible to construe the same to mean that the payment of the liens against the property named was to be deferred; but, on the contrary, such liens were the cash consideration to be paid for said property, and the 90 days in which the difference between the purchase price and the outstanding liens were to be paid cannot possibly be construed as in any manner relating to the time of payment of the mortgages upon said property. It was the duty of plaintiff under said contract to pay and discharge, without delay, the mortgages upon said property, and, had he done so, he would not have incurred the liabilities of which he here complains. The interest and legal attorney’s fees that accrued after said contract of sale was entered into are the result of the failure of plaintiff to discharge his plain and unquestioned obligations under said contract — to pay off said mortgages. Certainly plaintiff cannot complain of the result of his own laches and impose the liabilities thereby incurred upon the Kinkaids. Equity demands and requires that those who would woo her “must come with clean hands.” This the plaintiff does not do. *170 • It follows that the plaintiff, and not the Kinkaids, is liable for the interest accruing upon the mortgages in question here since the date of the execution of the contract sought to be specifically performed. The attorney’s fees which.are adjudged by the trial court against plaintiff are the fees definitely fixed as to an amount certain in the respective mortgages. The only case cited by plaintiff in support of his contention that the court erred in adjudging attorney’s fees against plaintiff, without evidence as to the value of such services, is Lewis v. Sutton, 21 Idaho, 541, 122 Pac. 911, in which case the mortgage provided “for a reasonable fee.” Hence said case is not an authority supporting said contention of plaintiff. Nor is section 4420, Comp. Laws 1909 (section 4032, Rev. Laws 1910), cited by the attorneys for the Union Trust Company as supporting the judgment of the court as to attorney’s fees, applicable to the instant case, for the reason that said section applies alone to foreclosure of mortgages upon personal property, without the intervention of a court. Where, as in this case, the amount of the attorney’s fee is definitely fixed in the mortgage or note, it is not necessary that evidence be introduced by the party seeking such foreclosure to show that the fee is equitable. Cooper v. Bank, 4 Okla. 632, 46 Pac. 475; Steward v. Commissioners, 29 Okla. 754, 119 Pac. 216. If the fee fixed be so high as to be oppressive, or be used as a cloak for charging usury, the burden is upon the one so asserting to prove it. It is assigned as error, and an attempt made to support said assignment by argument, that the stipulation in a mortgage for the payment of attorney’s fees for its •collection or foreclosure should be, without evidence to *171 support the rendition or value of such services, regarded as a mode of charging usurious interest. This assignment is entirely frivolous, and will not be considered by this court. The court ordered that out of the $1,328.89 decreed to be paid into court by plaintiff for the benefit of the Kinkaids, the mortgage debt of J. R. Clark, in the sum of $284.41, be paid, and decreed a lien upon said property for the payment of same. As this money is to be paid into court by the plaintiff, and out of the same the said Clark is to be paid, and such payment discharges the lien decreed upon the property purchased by plaintiff from the Kinkaids, if the' court erred in decreeing said lien upon said property, which we do not decide, such error is without injury of which the plaintiff cap complain. It therefore follows that the court did not err in decreeing that the balance due by plaintiff to the Kinkaids was the sum of $1,328.89. However, the court did err in failing to add legal interest thereon after 90 days from the date of the contract, and this error of the court should be corrected. The interest that accrued from the date of the execution of the contract on the outstanding liens, up to the time the decree was rendered in this case, and the attorney’s fees that accrued on account of plaintiff’s failure to pay said mortgages as he contracted, are due entirely to the fault of plaintiff, and under the well-established rule of equity plaintiff cannot complain of his own wrong. Upon a consideration of the decree as a whole, we do not think that the deficiency judgment rendered so affects the plaintiff that he can properly' complain of same; and from the views herein expressed it is apparent that the court did not err in overruling the motion for a new trial. *172 This court has considered the whole record in this ease and weighed the evidence, and finds that the judgment rendered by the trial court is supported by the weight of the evidence, but is more favorable to the plaintiff than he is. entitled, and that hence the judgment should be modified by charging plaintiff with interest after 90 days from the date of said contract hereinbefore mentioned upon the $1,328.89, decreed due by plaintiff to the Kinkaids. In Success Realty Co. v. Trowbridge, 50 Okla.—, 150 Pac. 898, it is held: “In all cases which were cognizable only in a court of chancery, this court on appeal has the power to consider the whole record, to weigh the evidence, and, when the judgment of the trial court is clearly against the weight of the evidence, render or cause to be rendered such judgment as the trial court should have rendered." See, also, Schock v. Fish, 45 Okla. 12, 144 Pac. 584. Finding no error in the record of which plaintiff in error can properly complain, the judgment rendered herein should be modified so as to charge plaintiff in error with interest on the $1,328.89 after the expiration of 90 days from the date of the execution of the original contract of purchase by and between said plaintiff and the Kinkaids, and the judgment in said cause, as so modified, should be affirmed. By the Court: It is so ordered.