Hardin v. Ross

Cook, P. J., delivered the opinion of the court. We think that appellants state the narrow and sole question in this case. The only question is whether or not the defendants, appellees here, were entitled to demand attorney’s fees, in addition to the debt described in the deed of trust, interest thereon, and matured expenses at the time the tender was made. The facts are about as follows: On the 6th day of January, 1915, one L. E. Caldwell and his wife executed a deed of trust on certain lands in Calhoun county to secure an indebtedness due to one P. M. Barton; the indebtedness as described in the deed of trust of record being “the sum of fifteen hundred seventy-four and forty hundredths dollars, due the 6th, day of January, 1916.” Default was made in the payment of the indebtedness mentioned, and the trustee, at the request of the beneficiary, advertised the land for sale. Before the date fixed for the sale of the land appellants boug'ht the land described in the deed of trust from the owners thereof, 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. The trustee, at the instance of the then holders of the indebtedness, declined to accept the tender. Whereupon the trustee resigned, and a substituted trustee was appointed by the holders of the indebtedness, and the land was again advertised for sale. Appellants then filed their bill of complaint setting up the facts as stated, and stating further that the land would be sold if the same was not enjoined by the court, and stating that the trustee refused to accept the amount of the indebtedness described in the trust deed, but demanded one hundred and sixty dollars more by way of attorney fees. The injunction was granted, and at the hearing, upon bill, answer, and proof, the chancellor dissolved the injunction and dismissed the bill. [190] Looking through, the entire record, the sole difference between the opposing parties was an attorney’s fee. Although this does not appear in the deed of trust, it was proven that the indebtedness intended to be secured by the deed of trust was represented by a promissory note, which contained the usual ' provision for an attorney’s fee. The appellants when they bought the land did so with the knowledge that they bought subject to the deed of trust of record. The debt was described, but no mention was made of a note, with a provision for an attorney’s fee; in fact, it does not appear that there was a note. Appellees contend that they were certainly entitled to an attorney’s fee, because they were compelled to defend the injunction suit. The answer to that seems to be the defendants, when they unconditionally refused to accept the tender, of the amount called for by the record, were in the wrong, and when they readvertised the land and still refused to accept the tender they thereby accentuated the original wrong. Appellees were only entitled to the debt described in the deed of trust, and whatever costs they had incurred in advertising the land for sale, and when they refused to accept that, they created the litigation and created the attorney’s fee, all of which was unnecessary. Reversed and remanded.