Smith v. Farmers Bank

Hinks, J. The Farmers Bank of Grlenwood filed its petition against C. B. Smith, making the following allegations: On December 19 (29?), 1923 (1922?), C. B. Smith executed to petitioner his promissory note in the sum of $800, payable September 15, 1923, with interest thereon from maturity at eight per cent, per annum, and ten per cent, attorney’s fees if collected by law or through an attorney. On June 20, 1923, defendant executed to petitioner a deed to a described tract of land and certain personal property to secure the indebtedness evidenced by said note. The defendant failed and refused to pay the note. Petitioner served defendant with written notice of its intention to file suit on said note to the March term, 1926, of the superior court of said county. Petitioner files this equitable foreclosure of said deed to secure debt, and prays for a general judgment against defendant for the principal, interest, and attorney’s fees due on said note, and the costs of the court, and that its security deed be foreclosed and its lien set up against the property conveyed thereby, and that the defendant’s equity of redemption be forever barred. The security deed referred to recited that it was made subject to two certain previous deeds to secure debts, made by the defendant to Chickamauga Trust Company, and that it was made to secure the payment of the defendant’s note to petitioner for $800, dated December 29, 1922, due September 15, 1923, with ten per cent, attorneys’ fees. The defendant filed his answer denying that he was liable for attorneys’ fees, because he had not been served with any notice for the recovery of the same ten days prior to the entry of suit against him. lie alleged, that he was adjudged a bankrupt on November 19, 1924, and for this reason was not liable on the contract for fees; that the plaintiff was not entitled to a judgment against him in this suit; that the plaintiff was not entitled to a specific judgment against the property embraced in the security deed, because the same was made subject to two prior security deeds. He further set up by way of defense that he had been adjudged a bankrupt. On the trial the petitioner introduced the note and the security deed. The defendant introduced his discharge in bankruptcy. The court directed a verdict in favor of [472] the plaintiff for principal of $800, interest $160, attorney’s fees $96, and costs. The defendant moved for a new trial upon the general grounds, which motion was overruled, and the defendant excepted. The headnotes sufficiently state our rulings. Judgment affirmed, on condition. All the Justices concur.