Nelson v. Bishop , 125 Miss. 256 ( 1921 )

W. H. Cook, J.,

delivered the opinion of the court.

This controversy grows out of an attempt to foreclose a deed of trust held by appellant upon appellee’s one-half interest in a certain schooner. Appellee was indebted to one Spottswood, as evidenced by certain promissory notes dated March 24, 1917, and appellant acquired this indebtedness and deed of trust. Afterwards he directed the trustee in the deed of trust to advertise for sale the interest of appellee in the boat for the purpose of satisfying a balance of four hundred dollars and interest, which appellant claimed to be due on this indebtedness. Appellee claimed to have paid one hundred dollars on the indebtedness for which he had not received credit, and offered to pay three hundred dollars, which he admitted to be due. After the property was advertised for sale, in order to save it from sale, appellee paid to the trustee, under protest, the full amount claimed by the trustee, together with interest and attorney’s fees as provided in the notes, and the cost of advertising, amounting in the aggregate to five hundred fourteen dollars and twenty-four cents. Thereupon he filed his bill of complaint seeking to recover the amount which he had paid in excess of the three hundred dollars and interest accrued thereon, and from a decree in his favor for two hundred fourteen dollars and twenty-four cents, the full amount paid in excess of three hundred dollars this appeal was prosecuted.'

The chancellor passed upon the disputed facts in the record, and we do not feel warranted in disturbing his finding that complainant is entitled to recover the ainount paid in excess of the sum admitted to be due. There is, however, a manifest'error in the calculation of the amount of recovery. It appears from the bill of complaint that the notes in controversy bore interest at the rate of six per centum per annum from date, and therefore complainant owed the interest on three hundred dollars from March 24,1917, to the date of the payment to the trustee, amounting to twenty-three dollars and complainant' was not entitled to recover this interest. If the appellee will enter a remittitur of twenty-three dollars, the decree of the lower court will be affirmed; otherwise it is reversed and remanded.

Affirmed conditionally.