Armijo v. Henry , 14 N.M. 181 ( 1907 )

OPINION OF THE COURT.

MANN, J.

Counsel for appellant assigns numerous errors as to the findings of fact made by the Trial Court and its refusal to make certain findings asked by appellant. A careful persual of the evidence, however, convinces us that the findings made by the court were fully justified by the evidence, and contain all the material facts necessary to an adjudication of the matters in isssue. This court has firmly established the rule that where the findings of fact of the Trial' Court are based upon substantial evidence to sustain them, they will not be disturbed by this court. The statement of facts above given is substantially as found by the Trial Court, and there seems to be no dispute as to the correctness of its conclusions of law as to the invalidity of the tax sales of the property to Henry and to his assignors, or as to the invalidity of the deed from the Armijo’s to Henry, which was placed in Moore’s hands, but never delivered to Henry with Armijo’s consent. These conclusions of the Trial Court and that part of the' decree setting them aside áre not assigned as error and consequently will not be considered by this court. The only-remaining questions are: 1st. Whether there was a failure, or partial failure of the consideration of the $2,029.60-note from Armijo and wife to Henry; and, 2nd. Whether the computation made by the court of the amount due-Henry from the Armijos was correct.

1. The Trial Court in its decree as to the note for $2,029.60 says: (P. 248 Tr.) “Said note is valid and given upon a valuable consideration to the extent of $1,132.64, being the sum of $444.00 paid to said Johnston by said Henry on April 3rd, 1897, and $591.11, the-amount paid by said Henry at said tax sale on July 6th, 1894, with interest thereon at 6 per cent per annum, to the date of said note, and is invalid and without consideration as to the remainder thereof,” and this note is treated in the decree as though the principal sum at that date was for said amount of $1,132.64, instead of $2,029.60, as appears upon the face of the note. But was the remainder of the principal expressed invalid and without consideration?- The evidence shows that at the time this note was given the two former notes were long past due and a suit to-foreclose the first two deeds of trust was then pending in the District Court of Bernalillo County. True, these cases were subject to dismissal for failure to file copies of his: notes and trust deeds, but the way for their foreclosure-was still open and Henry had at least shown his intention to foreclose. The tax certificates which he held against, these premises, with the three per cent, interest added in,, both he and Armijo believed to be valid claims against the Armijos, and liens upon the property as well, as the certificate held by Johnston.

An attempt was made by these parties to adjust these-tax sale claims. Armijo testified that “he wanted me to give a note for twelve per cent; it was too much to be paying three per cent a month and I signed it to stop three per cent a month.” (P. 128 Tr.)

1 There is no question but a valid tax sale certificate-at that time did draw three per cent, per month and there-is no claim that; Henry had any knowledge of the invalidity of the tax sale. The question of its validity was equally open to both parties and there is no claim of any fraud or misrepresentation on the part of Henry, or that there was an unfair advantage taken of Armijo. Nor is it claimed that there was any mistake in the calculation of the amount agreed upon as due Henry. Had Armijo been able to have paid the money at that time he would have unquestionably paid the amount named in the note and taken up the certificates, which, according to Henry’s undisputed testimony, was the original intention. It was a complete settlement of these tax sale certificates between the parties. According to Henry’s testimony the certificates were turned over to Airmijo’s agent, and we think we are justified in so finding.

It is difficult to see then wherein there was a partial failure of consideration for this note. These certificates were outstanding against his property and had not been declared void by any court, nor could they have been without a suit in equity brought by him for that purpose. He obtained six months time in which to pay them off at a reduced rate of interest, as shown by the note itself, which extension of time was in itself a good consideration. 7 Cyc. 721, and cases cited.

Equity will not interfere and declare a failure of consideration in whole or in part except in cases where the money could have been recovered back if paid.

“It is settled! in law, and the rule has been followed in equity, that money paid under a mistake of law with respect to the liability to make payment, but with full knowledge, or with means of obtaining knowledge of all the circumstances cannot be recovered back.” 2 Pom. Eq. Jurisprudence (3rd Ed.) Sec. 851; Painter v. Park Co., 81 Ia. 242; Alton v. First Nat. Bank, 157 Mass. 341; Erkin v. Nicolin, 39 Minn. 461; Gillman v. Alford, 69 Tex. 267; Beard v. Beard, 25 W. Va. 456.

In Perkins v. Trinka, 30 Minn. 241, plaintiff held a tax deed upon lands occupied by defendants and which he claimed as owner, plaintiff compromised by giving a note secured by a mortgage on the land. The Supreme Court of Minnesota afterwards declared tax deeds such, as plaintiff held void and as vesting no title and this was set up as a defense to the note, but the Supreme Court says: “Neither is it any defense that it was afterwards judicially determined that tax deeds of this form are void. Where parties whose rights are questionable and doubtful, and who have equal means of ascertaining what their rights are, come together and settle these rights among themselves, a court must enforce the agreement' to which they may fairly come at the time, although a judicial decision should after-wards be made showing that these rights were different from what they supposed them to be, or showing that one of them really had no rights at all, and so nothing to fore-go.” 'True, the compromise or settlement in the above case was made after suit was brought for possession under the void tax deed, but I can see no difference in principle between it and the case at bar. In each case the parties attempted to and did settle their supposed rights between themselves, waiving any legal rights either party might have claimed, and it can make no difference what might have been established by a judicial determination of their claims.

The agreement between Henry and Armijo was in the nature of a compromise, which is defined as “an agreement between two or more persons, who to avoid a law suit, amicably settle their differences on such terms as they can agree upon.” 6 Am. and Eng. Enc. of Law (2nd Ed.) 418.

Airmijo testifies (P. 158 Tr.) : “He said he was entitled by law to collect but was willing to take twelve per cent a year”, and that for that reason he executed the note in question to stop the three per cent, per month, which both believed Henry entitled to, and from the above quoted language presumably to avoid litigation.

It is almost universally held that such a consideration is good, in the absence of fraud. Northern Liberty Market Co. v. Kelly, 113 U. S. 199; Booth v. Dexter Steam Fire Engine Co., 118 Ala. 369; Richardson v. Comstock, 21 Ark. 69; Rone v. Barnes, 101 Ia. 302; French v. French, 84 Ia. 655; Keyes v. Mann, 63 Ia. 560; Cobb v. Arnold, 8 Metc. 403; Pickel v. St. L. Chamber of Commerce, 80 Mo. 65; Housatonic Nat. Bk. v. Foster, 85 How. 376; White v. Hoyt, et. al., 73 N. Y. 505.

This ease does not fall within the rule laid down in Briscoe v. Knealy, 8 Mo. App. 67, for in that ease the portion of the note held to be void for failure of consideration was an amount added to the settlement and no part of the settlement itself, while in the case at bar the whole sum included in the note was included in the settlement and agreed to by the parties before the note was executed.

Neither is Doebler v. Waters, 30 Ga. 344, cited by appellee, in point, for in that case the contract declared to-be void was separate 'and distinct from the main contract and based upon an entirely separate consideration.

In -our judgment the whole sum is but one consideration, the amount agreed upon as owing from Armijo to-Henry and the entire note must be taken together and stand of fall together as to failure of consideration.

2 It is contended that the three per cent, allowed in the settlement on the tax sale certificates is usury, and that the note is therefore tainted with usury, and void for that reason as to the amount of the three per cent, penalty. But the agreement upon which this note is founded lacks the! essential element of usury, that is, the intent to exact more than legal interest. 29 Am. and Eng. Enc. of Law (2nd. Ed.) 461; Bank v. Wagner, 9 Peters 378; Spain v. Hamilton, 1 Wall. 604; Call v. Palmer, 116 U. S. 98.

At the time the note was made both parties believed Henry was entitled to the three per cent, per month interest, or rather penalty on the same paid at the tax sale, and there was no intent on the part of either to take or pay any sum not allowed by law, and it is said that the question whether a contract is usurious is to be decided with reference to the time when it was entered into. 29 Am. and Eng. Enc. of Law, (2nd. Ed.) 460; Pollard v. Baylors, 6 Munf. (Va.) 433.

Appellee is inconsistent in the claim, for he concedes-the justice of the claim for $444.00 (the amount paid for-the Johnston certificate), though that amount contains the three per cent, from the date of sale, and is to that extent usurious, if it be usury.

We conclude, therefore, that the note for $2,029.60 was a valid note for the consideration expressed on its face, and that Henry should have been decreed the entire sum. with interest at.twelve per cent, per annum, as provided by its terms.

3 2. The rule by which the court arrived at the amount due Henry is that known as the Massachusetts Eule, and is the correct one for computing the interest and applying the payments made by Armijo, as we understand the Trial Court’s method. This court SO'held in.the recent casenf Jones, Downs & Co. v. Chandler, 85 Pac. 392, and we are content with the doctrine there laid down.

3. There 'is a cross appeal on the part of Armijo from the decree of the' court allowing ten per cent, of the amount found due as attorney’s fees, from the ainount found due by the court upon its computation, and the allowance of interest after May 25th, 1904, the date of the alleged tender from Armijo to Henry.

The first contention on the part of cross-appellant is that attorney’s fees shoiddnot have been allowed as a lien against the property, for the reason that the deeds of trust do not provide for attorney’s fees, citing Cichel v. Carrillo, 42 Cal. 493, and Stover v. Joneycacke, 9 Kan. 367, as authority therefor. The former case does not discuss the proposition at all, although the syllabus does lay down the general rule that if there is no provision in the mortgage for counsel fees none can be allowed, but in that ease the notes were given by one party, while the mortgage was given by another, and there is nothing to indicate that the notes provided for counsel fees, while in the Kansas case the language of the court is: “It is error for the court, in an action to foreclose a mortgage, to render a judgment against the mortgagors, for the attorney’s fees of the mortgagee where there is no contract or stipulation in the mortgage, or elsewhere, requiring the payment of attorney’s fees.” We have no doubt of the soundness of this doctrine, and that unless there is a contract for attorney’s fees in the mortgage or elsewhere, none can be allowed.

4 But in this ease each of the three notes expressly provided for attorney’s fees in case of suit, or words of like purport, and in each deed of trust the note for which it stood as security provided “that if the said parties of the first part shall well and truly pay off and discharge the debt and interest expressed in the said note, and every part thereof, according to the true tenor and effect of said note, etc.,” or similar words of like purport.

This we think a sufficient reference to the notes to include in the deeds of trust, given as security therefor, all the conditions of the notes. In Clark v. Carlton, 4 Lea (Tenn.) 452, certain notes were given providing for a reasonable attorney’s fee for a deed to lands which contained the reservation of a lien in the vendor as follows: “It is hereby expressly agreed and understood' that a lien be and hereby is. expressly reserved on said land for due payment of said notes.” The court says: “The description of the notes in the deed does not include the stipulation for the payment of attorney’s fees, but it identifies the notes and the defendant admits that these were the notes given for the lands. The lien reserved is for payment of the notes, and necessarily covers any legal stipulation therein contained.” See also Tinsley v. Moors (Tex. Civ. App.) 25 S. W. Rep. 148.

“It is an elementary principle that where separate writings are executed between the same parties at the same time in the course and as part of the same transactions, and intended to accomplish the same general object, they are to be construed as one and' the same instrument.” 4 Am. and Eng. Ency. of Law, (2nd Ed.) 144; Bradley v. Marshall, 54 Ill. 183; Wood v. Ridgeville College, 114 Ind. 320.

And this rule is held to apply to notes and mortgages or trust deeds given as security therefor. Brooke v. Struthers (Mich.) 68 N. W. 272; Brownlee v. Arnold, 60 Mo. 79; Gregory v. Marks, 8 Bissell (U. S.) 44.

It is true that a different rule seems to apply in California, but such seems to be the prevailing doctrine, and we think the weight of authority is against the rule. laid down by the California courts.

There is much confusion as to whether a stipulation for attornejr’s fees in a note can be enforced, but it has been settled in this territory in Bank of Dallas v. Tuttle, 5 N. M. 432, and we see no reason to depart from the doctrine there announced.

As to the question of interest after the alleged tender, we do not deem it necessary to discuss the questions raised, as we view it, the tender was not of sufficient amount to pay the three notes, with interest at twelve per cent, per an-num, counting the third note at its expressed consideration of $2,029.60, and was therefore not a full tender of the amount due at the date of the offer.

The decree of the lower court will be reversed, and a decree rendered in this court in accordance with the views herein expressed, and the cross appeal will be dismissed.