61 P. 785 | Cal. | 1900
This is an action on a note and to foreclose certain grant deeds of land given by way of mortgage to secure the payment of said note. Defendants appeal from the judgment.
The complaint shows that defendants jointly executed to plaintiff a note for thirty-three thousand one hundred and nineteen dollars and fifty-eight cents, and thereafter, as security for the payment of the same, defendants conveyed to plaintiff by deeds of grant certain described real estate. "That said conveyance of said real estate by defendants to plaintiff is and was intended by both plaintiff and defendants, as a mortgage to secure the payment of said promissory note." The note provides for the payment of two per cent on the sum due as attorney fees in case suit is brought to collect the same. The answers of defendants consisted solely of general denials of the allegations of the complaint. At the trial the defendants admitted that each and every allegation in the complaint contained was true. In the decree an attorney's fee as provided in the note was allowed, and, with the other amounts found to be due to plaintiff, was made a lien on the lands described in the complaint. The decree was in the usual form and directed that all and singular the mortgaged premises, or so much thereof as might be sufficient to raise the amount due plaintiff, together with costs of suit and expenses of sale, and which may be sold separately without material injury to the parties interested, be sold at public auction in the manner prescribed by law. A deficiency judgment was also provided for in the decree in the usual form.
1. A conveyance by deed of grant is deemed to be a mortgage when it is intended as a mortgage to secure the payment of a promissory note or the performance of any other obligation. *163
The complaint states a cause of action for the foreclosure of a deed given by way of mortgage. (Civ. Code, sec.
2. The attorney's fee was properly allowed and properly made a lien on the mortgaged premises. A copy of what is called in the complaint a promissory note is set out therein, and it appears to contain, in addition to the usual terms of a promissory note, an agreement for attorney fees in case suit is brought. Following this is the allegation that the conveyance of the land was made to secure the payment of the "said note." This term "said note," as used in the complaint, evidently includes the contract to pay attorney fees previously set out as a part of the note. The truth of this allegation of the complaint having been admitted on the trial, it follows that we must treat the deeds as having been given to secure the payment of an attorney's fee, as well as the principal and interest of the note. It was proper, therefore, not only to give plaintiff judgment for an attorney's fee as provided, but also to make such fee a lien upon the mortgaged premises. There is nothing in conflict with this position in Boobv. Hall,
3. The decree in directing the sale of the property substantially follows the provisions of section
4. Section
The judgment should be affirmed.
Chipman, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the judgment is affirmed.
Henshaw, J., McFarland, J., Temple, J.