Moore v. Gregory ( 1882 )

Lake, Ch. J.

Of the several matters in this record complained of, the only tenable one is the finding of the court that, “in the body of the second and third mortgages” the “defendants agreed to pay to the plaintiff a reasonable attorney’s fee for the foreclosure of the same.” Eeferring to these mortgages we find that, as to the second, this finding was untrue, from which it follows that, as to defendants E. Mary and John S. Gregory, the judgment forjthe payment of the seventy dollars attorney’s fee is erroneous.

Taking the mortgages in the order of their execution and delivery they were as follows: The first, January 4th, 1877, executed by E. Mary and John S. Gregory alone, to-secure the sum of six hundred dollars, the agreed consideration for an assignment to said E. Mary Gregory of certain interests in three several judgments then held by the mortgagee as agent. In this mortgage an attorney’s fee was provided for in case of foreclosure.

The second mortgage was given January/5th, 1877, as additional security to the preceding, and was executed by John S. Gregory, senior, Wealthy P. Gregory, E. Mary Gregory, and John S. Gregory, jointly. In this no provision for an attorney’s fee is found.

The third mortgage was given by John S. .Gregory, senior, and Wealthy P. Gregory alone, on the twenty-ninth day of April, 1878, for the purpose of securing the payment of the said judgments, so as aforesaid partially assigned, and to secure the release of the one given by E. Mary and John S. Gregory alone. In this last mortgage provision is made for the payment of an attorney’s fee.

From this statement of the order and purpose of the several mortgages, it will be seen at a glance that the only agreement made by E. Mary and John S. Gregory to answer for an attorney’s fee, was in the first instrument, the release of which, by the execution of the third, left them, and also their property embraced in- ,the second mortgage, wholly relieved from all liability in: that respect. The claim of E. Mary and John S. Gregory, that under the arrangement for giving the last mortgage the second one was to have been released also, cannot be allowed. The evidence does not sustain them in it. No-witness save John S. Gregory so testifies, and he is completely overborne in this by the testimony of the witnesses Cobb, McMurtry, and Moore, sustained as they are by the recital in the last mortgage that the release was “of a certain mortgage executed by John S Gregory, jr., and E. Mary Gregory to said R. E. Moore,” which appears to have been done, and the release recorded. Save in the matter of attorney’s fee the court below seems to have taken a correct view of the evidence, and rendered the proper judgment.

The judgment is reversed, and one will be entered here conforming to this opinion.

Reversed and judgment.