119 must be presented for allowance.118 This is certainly true when there is no note or other obligation aside from the mortgage. It seems that the presentation of a note secured by mortgage is sufficient to sustain the mortgage.' Where a note, executed by one person, is secured by a mortgage executed by another, it is not necessary to present the note for allowance to the executor or administrator of the maker of the note, but the mortgage may be enforced notwithstanding the claim against the estate is barred.120 So it is not necessary to present the note, though the mortgage was given by the decedent, if he afterwards conveyed the lands to another.121 § 2321. Stipulations in mortgage. In foreclosing a mortgage containing a stipulation that the mortgagee should be entitled to all costs, including counsel fees, not exceeding five per cent. of the amount due, it is not necessary to aver in the complaint that five per cent. was reasonable counsel fees, as the counsel fees thus stipulated to be paid were not the cause of action, but, like costs, a mere incident to it, and might be fixed by the court, at its discretion, not exceeding the five per cent.122 § 2322. Subsequent incumbrances and liens. If there are incumbrancers which the plaintiff insists are subsequent to his mortgage, but who claim to have a prior equity, e. g., where the plaintiff claims to have become mortgagee in good faith, without notice of a prior claim, the facts must be specially stated.123 It seems it is not necessary to make a claim for 118 Ellis v. Polhemus, 27 Cal. 350; Pitte v. Shipley, 46 id. 160. 119 Fallon v. Butler, 21 Cal. 32; 81 Am. Dec. 140. 120 Sichel v. Carrillo, 42 Cal. 493; and see Hibernia, etc., Loan Soc. v. Conlin, 67 id. 178; Tynan v. Walker, 35 id. 634; 95 Am. Dec. 152. 121 Christy v. Dana, 42 Cal. 174. 122 Carriere v. Minturn, 5 Cal. 435; Grontier v. Minturn, id. 492; Monroe v. Fohl, 72 id. 571; First Nat. Bank v. Holt, 87 id. 158; and see Hewitt v. Dean, 91 id. 617; 25 Am. St. Rep. 227. But attorney's fees can not be recovered where the agreement to pay them is not directly averred in the complaint, but is merely inferable from an exhibit annexed thereto. Lee v. McCarthy (Cal.), 35 Pac. Rep. 1034; Boob v. Hall, 107 Cal. 160; see Avery v. Mande, 112 id. 565; Ames v. Bigelow, 15 Wash. St. 532. 123 Potter v. Crandall, Clarke Ch. 119; Bank of Orleans v. Flagg, 3 Barb. Ch. 316. payment of subsequent liens.124 Where the sheriff was proceeding to sell under a judgment in a case of foreclosure, and the plaintiff, as subsequent mortgagee, tendered to him the full amount of the judgment and costs, which was refused, and where plaintiff paid into the court the amount tendered, but not enough to cover the interest accrued subsequent to the tender, and plaintiff asked to be subrogated to his right as a subsequent mortgagee, it was held that all the relief to which the plaintiff is entitled could have been speedily and summarily had in the action of foreclosure on motion, and a subsequent equitable action will not lie.125 § 2323. Substituted parties. Where the plaintiff, being the owner of an undivided half of a tract of land, mortgaged his interest therein to A., and subsequently, with his cotenant, conveyed the land to B. and C., two-thirds to one and one-third to the other, by two separate deeds, in each of which is set forth the agreement of the grantees to assume the payment of the mortgage; and after the mortgage fell due, the plaintiff filed his bill against B. and C. to compel a foreclosure and payment, it was held that the case was one of chancery jurisdiction, and that it was not necessary for plaintiff first to pay off the mortgage before bringing his action.128 A mere stranger who voluntarily pays money due on a mortgage, and fails to take an assignment thereof, but allows it to be canceled and discharged, can not afterwards come into equity and in the absence of fraud, accident, or mistake of fact have the mortgage reinstated and himself substituted in the place of the mortgagee, 127 § 2324. Surplus averment. If the complaint in a foreclosure suit avers that the mortgage was executed by the defendant (thereby making it by averment a legal mortgage), and also sets out a copy of the same, and it appears on its face not to be a legal as distinguished from an equitable mortgage, the averment may be rejected as surplusage. 128 124 Field v. Hawkhurst, 9 How. Pr. 75; see as to former practice in this regard, Wheeler v. Van Kuren, 1 Barb. Ch. 490; Tower v. White, 10 Paige, 395. 125 Ketchum v. Crippin, 37 Cal. 223. 126 Abell v. Coons, 7 Cal. 105; 68 Am. Dec. 229. 127 Guy v. Du Uprey, 16 Cal. 196; 76 Am. Dec. 518. 128 Love v. S. N. L. W. & M. Co., 32 Cal. 639; 91 Am. Dec. 602. As to variance between pleadings and the mortgage, see Sears v. Barnum, Clarke Ch. 139. § 2325. Tax title. In an action to foreclose a tax title it is unnecessary to allege in the petition the due and regular performance of the acts necessary to make the tax deed valid when the execution and delivery of said deed by the proper officer is averred, and a copy of it is annexed.129 § 2326. Tender. Where upon default in the payment of interest upon a mortgage which provides that on such default the principal shall, at the mortgagee's option, become payable, the mortgagee has made his election by bringing an action claiming to foreclose for the whole amount, the defendant has a right, although after suit brought, to tender the whole amount, with costs, and the tender, if refused, extinguishes the lien of the mortgage.130 § 2327. That defendants claim some interest. The above allegation is sufficient against defendants who claim subsequent to the plaintiff's mortgage. It is only important in a contest as to the surplus.131 But a decree against such defendants does not bar rights which are paramount to the title of both mortgagor and mortgagee.132 § 2328. Two mortgages on the same property. Where plaintiff holds two mortgages on the same property, and the property is indivisible, he may foreclose when the first becomes due. 133 § 2329. Waiver of right to foreclose. A. commenced an action against B. on a money demand, and to foreclose a mortgage given to secure his debt. On motion of A.'s attorney, the prayer for foreclosure of the mortgage and sale of the property was stricken out, and a money judgment taken; it was held that this was an abandonment and waiver of A.'s right to a foreclosure and sale of the mortgaged property.134 § 2330. When action lies. Where a judgment is rendered against A. and his sureties, and A. and a portion of his sureties, 129 Byington v. Robertson, 17 Iowa, 562. 130 Hartley v. Tatham, 1 Rob. 246; S. C., 1 Keyes, 222; see § 3813, post. 131 Lewis v. Smith, 9 N. Y. 502; 61 Am. Dec. 706; Drury v. Clark, 16 How. Pr. 424. 132 Lewis v. Smith, 9 N. Y. 502; 61 Am. Dec. 706; 11 Barb. 152. 133 Hawkins v. Hill, 51 Cal. 499; 76 Am. Dec. 409. 134 Ladd v. Ruggles, 23 Cal. 232. in order to secure the payment of said judgment, mortgage their property, subsequent to which an execution under the judgment is levied upon sufficient property of B., a surety not joining in the mortgage, to satisfy the judgment and afterwards is voluntarily released, it was held that no action can be maintained on the mortgage; for the levy satisfying the judgment, the mortgage, as an incident thereto, must also be thereby satisfied.135 § 2331. Who may maintain action. The creditor of the estate of a deceased person whose claim is secured by mortgage, may, after presentation of his claim, proceed at once to foreclose the mortgage, whether it be allowed or rejected.136 But the claim must first be presented to the executor or administrator and the probate judge.137 defendant executed to the plaintiff a note, conditioned to pay .. dollars, in .... years, with interest at him .... II. That for securing the payment of the said note, the said executed to the plaintiff a mortgage of the same date, upon certain real property in the county of described as follows [give a description of the property as it should be described in the sheriff's deed]. III. That on the ..... day of ........ .... 18.., the said mortgage was recorded in the office of the county recorder of the county of page .. in book of mortgages, 18.., the IV. That on the ........ day of .. said .... conveyed the same real property, subject to the said mortgage, to the defendant E. F., who thereupon covenanted with the said A. B., under his hand and seal, that the said note and mortgage should be paid at maturity. V. That no part of the principal or interest of the said note and mortgage has been paid. 135 People v. Chisholm, 8 Cal. 29; 42 Ind. 310. 136 Willis v. Farley, 24 Cal. 490. 137 Id.; see § 431, ante; Hearn v. Kennedy, 85 Cal. 55. VI. That the defendant G. HI. has or claims some interest in or lien upon the said real property; but the same, whatever it may be, is subject to the lien of the said mortgage. Wherefore, the plaintiff demands judgment: 1. That each of the defendants, and all persons claiming under any of them, subsequently to the commencement of this action, be foreclosed of all equity of redemption or other interest in the said real property. 2. That the same may be sold, and the proceeds applied to the payment of the amount due on the said note and mortgage, with interest. 3. That if there be any deficiency, the defendants A. B. and E. F. pay the same.1 138 § 2333. Essential averments. In an action upon the promise to pay money, if the complaint contains no averment of consideration or of indebtedness, except by way of recital, it is insufficient.139 And an action will not lie on the mere recital in a mortgage of the existence of a debt;140 though it has been held that the indebtedness for which the mortgage was given need not be set forth.141 The averment in the complaint that the plaintiff is the owner of the note and mortgage is sufficient, without stating that he is holder.142 A complaint in an action commenced after the death of a husband, on a note and mortgage, executed by the husband and wife, during the life of the husband, does not state a cause of action unless it aver that the husband in his lifetime failed to pay the note.143 Under Washington procedure, in an action to foreclose a mortgage on real estate, a complaint is sufficient which states the title of the cause, name of the court, name of the county in which the action is brought, names of the parties to the action, and gives a plain and concise statement of the execution of a 138 This form is from Swan's Pl. 414. 139 Shafer v. Bear River & Auburn W. & M. Co., 4 Cal. 294. 140 Id. 141 Day v. Perkins, 2 Sandf. Ch. 359. 142 Rollins v. Forbes, 10 Cal. 299. 143 Brown v. Orr, 29 Cal. 120. A complaint in a suit to enforce a mortgage on a widow's dower interest must show the facts, from which the portion of the mortgage debt properly chargeable to such dower interest can be ascertained. Fowle v. House, 29 Oreg. |
