Sharp v. Barker , 11 Kan. 381 ( 1873 )

The opinion of the court was delivered by

Brewer, J.:

But three questions are involved in this case. First: Can a mortgagee, on the failure of the mortgagor to pay the taxes levied upon the mortgaged premises, pay the same and have them included in the judgment rendered on the mortgage? This has been recently decided in the affirmative by this court: Stanclift v. Norton, ante, 218., Second: Is a stipulation in a mortgage to pay ten per cent, attorneys’ fees upon foreclosure, valid? This also has been decided in the affirmative. Tholen v. Duffy, 7 Kas., 405 The amount of the mortgage-debt is not so large as to make a ten-per-cent, attorney fee grossly excessive. It is not so large that a court of equity will refuse to enforce a stipulation therefor. Third: Will so much of the judgment as is for attorneys’ fees and taxes draw seven per cent, interest, or the rate stipulated to be paid on the mortgage-debt ? The law as to taxes is, that they shall be “included in the judgment:” Gen. Stat., 1062, § 135. The stipulation in the mortgage is that the plaintiff “should be entitled to a judgment for the possession of the premises, and costs, expenses, and attorneys’ fees of ten- per cent, of the amount due.” Both taxes and attorneys’ fees are included in the judgment, and should, we think, bear the samé rate of interest that the parties have stipulated for the judgment.

The judgment will be affirmed.

All the Justices concurring.