Opinion
No. 38842.
October 5, 1953.
1. Interest — when creditor not entitled to.
Where a debtor is really and bona fide ready to make payment and intends to do so, but is prevented from doing so by the act or omission of his creditor the latter will not be entitled to interest.
2. Interest — tender of full amount required to stop running of.
A tender of less than the full amount due will not stop the running of interest.
3. Costs — attorney's fees — under agreement — requirements necessary to prevent recovery of.
To prevent recovery of attorney's fees there must not only be a bona fide tender of debt but the tender must be in the full amount due the creditor and must be made before right to recover such fees has accrued by terms of agreement as by filing suit to enforce the debt.
4. Costs — attorney's fees — recoverable under agreement where tender is not unconditional.
Purchaser's tender of amount which purchaser asserted was due, coupled with condition that vendor's deed of trust should be canceled, was coupled with a condition and hence did not prevent vendor's recovery of attorney's fees.
5. Vendor and purchaser — evidence held insufficient to show failure of title.
Evidence held insufficient to show failure of title to a portion of tract purchased as would entitle purchaser to damages.
6. Interest — attorney's fees — tender of 60 per cent of debt due insufficient to prevent running of interest and collection of attorney's fees.
In dispute over amount due under note secured by deed of trust given by purchaser in sale and purchase of land, wherein purchaser tendered to seller only 60 per cent of debt, the amount which purchaser asserted was due, and filed bill for accounting, for failure of title to small parcel, and for injunction against foreclosure proceedings, decree for amount of debt, interest and attorney's fees as provided in said note would be proper, where debtor had not in good faith unconditionally made full tender, and services of attorney were necessary to collect debt and collection was effected only after litigation.
Headnotes as approved by Lee, J.
APPEAL from the chancery court of Pike County; F.D. HEWITT, Chancellor.
Breed O. Mounger, Tylertown, for appellant.
I. The court below erred in awarding the appellee damages in the sum of $100.00 and in deducting such amount found to be due from the appellee to the appellant, H.B. Holmes, in that the complainant below wholly failed to establish any breach of covenant or warranty or failure of title whatever and further wholly failed to establish that she had suffered any damages whatever by reason of such alleged breach of warranty of title. Green v. Irving, 54 Miss. 450; Coopwood v. McCandless, 99 Miss. 364, 54 So. 1107; Brunt v. McLaurin, 178 Miss. 86, 172 So. 309.
II. Having accepted the master's report and having adjudged the same to be a complete, full and accurate accounting between the parties to the date of April 2, 1952, as reflected by the accounting, the court erred in failing to allow interest thereon at the rate specified in the note of the appellee and further erred in failing to allow the appellant a sufficient attorney's fee as provided in said note, and erred further in assessing cost against the appellant. Mississippi Power Co. v. Ross, 168 Miss. 400, 150 So. 830; Tishomingo Savings Inst. v. Buchanan, 60 Miss. 496.
B.D. Statham, Magnolia, for appellee.
I. The court did not err in awarding appellee damages in the sum of $100.00 for failure of title. Brunt v. McLaurin, 178 Miss. 86, 172 So. 309.
II. The court was not in error in not allowing interest, attorney's fee on the total amount due and in assessing court costs. Secs. 523, 525, 628, pp. 537, 539, 683, Griffith's Mississippi Chancery Practice; 30 Am. Jur., Interest, Sec. 52; Gayden v. Kirk, 208 Miss. 283, 44 So.2d 410; 52 Am. Jur., Tender, Sec. 40; Liberty Mercantile Co. v. Allen, et al., 134 Miss. 354, 98 So. 774.
III. A decree of the court directing a payment of $593.21, less damages for failure of title would have been proper.
This lawsuit grew out of the sale of about 30 acres of real estate, evidenced at first by a contract, and subsequently by a deed of trust. Mrs. Alice B. Bates, the purchaser, made known to H.B. Holmes, the seller, her desire to pay off the amount outstanding on the purchase price. Holmes' first statement amounted to $1,074.28, but later he reduced it to $725.32. Thereafter Mrs. Bates filed her bill, alleging that she owed only $432.56 and tendered that amount. The prayer of her bill was for an accounting, for the allowance of damages for failure of title to a small parcel, and for an injunction against foreclosure proceedings. A mandatory injunction was granted upon the filing of the bill. The answer put the several allegations in issue.
A master was appointed to state an account as between the parties, and this having been done, the amount due under the contract was found to be $593.21, while under the deed of trust, it was shown to be $727.74. On the hearing, the court adjudged the larger amount to be due, decreed damages in the sum of $100.00 for failure of title to the small parcel, offset the amount of damages and the tender of $437.56 against the debt, as adjudged, allowed the defendant an attorney's fee of 15% on the difference of $190.15 and disallowed interest. Holmes appealed.
Appellant concedes that the finding as to the amount of debt is correct, but he is aggrieved at the other provisions of the decree.
The note, which the deed of trust secured and on which the court adjudicated the amount of the debt, provided for interest at the rate of 6% per annum and a minimum attorney's fee of 15%. Appellant was, therefore, clearly entitled to these incidents unless they were lost or decreased on account of the tender and the allowance of damages.
It is true that (Hn 1) "Where a debtor is really and bona fide ready to make payment and intends to do so, but is prevented from doing so by the act or omission of his creditor, the latter will not be entitled to interest. * * * A tender, however, of less than the full amount due will not stop the running of interest." 30 Am. Jur., Interest, Sec. 52, pg. 42. See also 47 C.J.S., Interest, Sec. 50, pg. 61. In Tishomingo Savings Institution v. Buchanan, 60 Miss. 496, this Court said: "The continuance of interest until payment is vindicated by our opinion in Meaders v. Gray, ante p. 400." The tender of only 60% of the debt could, under no circumstances, absolve the debtor from further liability for interest.
(Hn 3) To prevent the recovery of attorney's fees, there must not only be a bona fide tender, but it "must be in the full amount due the creditor, and it must be made before the right to recover such fees has accrued by the terms of the agreement, as by filing suit to enforce the debt." 52 Am. Jur., Tender, Sec. 40, pg. 244. In this case only about 60% of the debt was tendered, and the services of an attorney were necessary to collect the debt, and the collection was effected only after litigation.
(Hn 4) Besides, the tender was not unconditional. It was coupled with the condition that the deed of trust should be cancelled, and would have precluded the appellant from thereafter asserting a right to collect more. In Miss. Power Light Co. v. Ross, 168 Miss. 400, 150 So. 830, it was held that a tender, to be effective, must be unconditional. It is true that the appellee, with her tender, stated that she was willing to pay any further amount that the court might decree that she was owing, but she was, in fact, maintaining that she owed only $436.56. Thus the principle here is no different from that expressed in Tishomingo Savings Institution v. Buchanan, supra, where it was said: "It is true that he (the appellee) declares his readiness to pay what may be legally due on it, but he asserts there is nothing due, and this is inconsistent with a tender." (Emphasis supplied.)
It is also true that in certain cases, which involved an accounting, the tender of a safe sum in good faith which the debtor honestly believed to be due, and the offer to pay whatever should be ultimately ascertained as the amount legally due was held to constitute a compliance with the law. Purvis v. Woodward, 78 Miss. 922, 29 So. 917; Crittenden v. Ragan, 89 Miss. 185, 42 So. 282. But even according to appellee's contention, the amount owing was $593.21. Consequently she tendered only 73% of that amount. A debtor, in good faith, ought not to forget 27% of his obligation.
As regards damages for failure of title, the bill described the parcel of land with considerable particularity. However, the proof was that some negro by the name of Bips told Mrs. Bates that his corner comes close to her house, and "that that belongs to him." Mrs. Bates was in possession of all of the land and had never made any complaint to the appellant about the negro's claim. Besides the proof wholly failed to identify or describe the parcel of land which the negro was said to be claiming, or to show that it was in the SW 1/4 of the SW 1/4 of Section 8, Township 3 N, Range 8 E, as charged in the bill, or to show the value thereof. The final decree did not even describe the parcel. So (Hn 5) the proof was wholly insufficient on which to base an allowance for damages.
(Hn 6) It follows, therefore, that the decree of the trial court must be reversed and that a decree should be entered here for the appellant in the sum of $727.74, plus a 15% attorney fee thereon, and plus interest at the rate of 6% per annum from April 2, 1952, to date of payment. The mandatory injunction against foreclosure proceedings is dissolved, and the appellee is given 10 days from this date in which to make full payment.
Reversed, and decree here for appellant.
McGehee, C.J., and Kyle, Holmes and Lotterhos, JJ., concur.