I concur with the result. My reasons therefor are fully set out hereafter.
The following is taken from the findings of fact made by the court. The parts which I have italicized are in the handwriting of the judge; the other parts are typewritten:
"* * * That after the filing of said action and before trial, the said Beneficial Life Insurance Company at the specialinsistance and request of Wayne N. Mason sold, assigned, transferred and delivered said renewal note and mortgage and original note and mortgage to one Rawl S. Rice, who purported topurchase the same with money provided by Wayne S. Mason, and who ever since said time has been and still is the owner and holder thereof. * * *
"That at the time the said Rawl S. Rice purchased said note and mortgage, as hereinbefore set out, he paid to the Beneficial Life Insurance Company, as the purchase price thereof, the entire unpaid principal, interest, court costs accrued, and $50.00 attorney's fee for the payment of said attorney in commencing the foreclosure action, and that the said Rawl S. Rice at thespecial instance and request of Wayne N. Mason thereupon employed the firm of Thatcher and Young, attorneys, to appear in said cause and prosecute said action to its ultimate conclusion * * * an attorney at law, testified in behalf of plaintiff that in his opinion 10% of the amount found due and owing on said note and mortgage was and is a reasonable attorney's fee to be allowed the plaintiff herein, and that no evidence in opposition thereto was presented by defendants, and the court finds that $500.00 isnot a reasonable attorney's fee for the services of the respective attorneys of record in this case * * *. The Courtspecifically finds that but for the vindictiveness of Wayne N.Mason the *Page 441 matter could and would have been settled completely for anattorney fee of $50.00 and that under all the attendingcircumstances the sum of $50.00 is a fair, just, reasonable andequitable amount to allow as and for attorney fees.
"That the defendant Pearl B. Mason is now the record owner of said mortgaged lands and improvements but that the defendants William Mason * * * [and others] claim to be the owners of said property * * * by reason of the fact that the defendants Wayne N. Mason and Pearl B. Mason, his wife, have by written contract agreed to convey said premises to the defendants William Mason [etc.], * * * and that the latter named defendants have agreed in writing to assume and pay the note and mortgage herein sued upon * * *."
The court then found a contract made in the settlement of the estate of their father and mother, between the members of the Mason family, by the terms of which Wayne N. Mason and wife agreed to convey the real estate covered by the mortgage to the other defendants, and the other defendants agreed to convey to him other properties, but which deeds had not been delivered, and over which much trouble, some of which the court detailed, had occurred in the probate procedings after which the findings continued as follows:
"* * * On numerous occasions, defendant Wayne N. Mason, through his counsel, stated in open court that if the deeds did not conform strictly to the terms of the contract, that they were willing to execute a deed which would conform to the contract, and were at all times ready and willing to perform said agreement, but has at all times and does at this time tender adeed insufficient to comply with the terms of said agreement oracceptable to the Court and the Court has so ruled in the estatematter. The answering defendants permitted this mortgage which, under the terms of the agreement they agreed to assume and pay, to become delinquent, whereupon after several notices to defendants of its intention, plaintiff instituted this action. After the action was filed, defendant Glen S. Mason contacted plaintiff and asked if they could reinstate the loan by paying taxes, delinquent payments, costs, etc. Plaintiff refused to reinstate said loan, whereupon conversations were had relative to assigning said note and mortgage. Plaintiff stated that it would give Wayne N. Mason the first chance to pay off the obligation,or assign the same to him and if he did not do so, plaintiff would be willing to *Page 442 assign the said note and mortgage to defendant Glen S. Mason upon his paying the total amount of principal, accrued interest, penalties, court costs, and $50.00 attorney's fees * * *. Thereafter Wayne N. Mason requested Rawl S. Rice, a friend and neighbor to purchase the note and mortgage. Rice is the owner of considerable property, but did not have available sufficient cash to purchase the same. Whereupon Wayne N. Mason, * * * at the request of Rice, drew a check on the account of Pearl B. Mason, payable to Rice, for the amount necessary to purchase said mortgage, and Rice thereupon executed and delivered to Wayne N. Mason a promissory note payable to Pearl B. Mason in and evidencing said loan * * *. The foregoing transaction was entered into by Rice at the suggestion and under the direction of Wayne N. Mason. That Rice paid his note to Pearl B. Mason before the trial of this action from his own funds."
The court expressly found that Rice is the owner and holder of the note and mortgage that he purchased it with funds furnished by Wayne N. Mason and gave a note to secure the repayment of those funds which he later paid in full out of his own funds. On the other hand the court called it a "purported purchase," found that in all his dealings, in purchasing the note and mortgage and in the foreclosure suit, Rice acted under Wayne N. Mason's direction. It is also made clear by the findings that the plaintiff at that time would not sell to any one except Wayne N. Mason or to someone else, at his request; in addition the court treats Wayne N. Mason as the owner by refusing to allow attorney's fees on account of his actions and state of mind. From these findings it seems clear that the court considered Wayne N. Mason the real owner of the note and mortgage; that the assignment to Rice was only for the purpose of prosecuting the suit; that the note and mortgage and the suit thereon were at all times under Wayne N. Mason's control; and that the repayment by Rice of the purchase money furnished by Mason was not a bona fide transaction but that there was an understanding between them that Mason was the real owner. I therefore think that it should be so considered rather than that there was a bona fide purchase by Rice.
In view of these interpretations, were the facts found sufficient to justify the court's refusal to allow plaintiff's *Page 443 successor to recover a reasonable attorney's fee? I think not. The court found that
"but for the vindictiveness of Wayne N. Mason the matter could and would have been settled completely for an attorney fee of $50.00."
This is a very broad general finding. It does not point out anything that he did which he should not have done or anything that he should not have done which he did which prevented a settlement. Thus, it amounts to a mere finding that had he wanted to, or had he used more tact in his approach, he could have effected a settlement.
It is true that there is a finding that Glen S. Mason offered to purchase the note and mortgage from plaintiff, and that this was prevented by Wayne S. Mason. At the time of making this offer Glen S. Mason was obligated to pay the note and mortgage, not to purchase the same. Certainly Wayne was under no obligation to allow Glen, whose interests were adverse to his, to purchase the note and mortgage and continue the litigation to his detriment. There is also a further finding that Wayne, in the estate matter, had tendered a deed to the other defendants which the court therein had found to be insufficient to comply with the terms of the contract. But there is no finding that his failure to tender a sufficient deed was the reason why the other defendants had allowed the payments on the note and mortgage to become delinquent, or the reason for their failure to pay or tender payment of the note and mortgage before the attorney's fees had been earned. In the absence of such a finding I believe that the question of whether he was vindictive was immaterial. I therefore concur with the result.