191 P. 676 | Cal. | 1920
The defendants appeal from the judgment.
The plaintiff's complaint states a cause of action in favor of the plaintiff for the foreclosure of a mortgage on certain land executed by the defendants Hildebrand and Lettich to the Humboldt Savings Bank to secure the payment of a note of three thousand dollars dated December 26, 1912, due December 26, 1914, and bearing interest at six per cent per annum payable monthly in advance and compounded monthly if not paid when due. The mortgage was assigned to the plaintiff by an instrument dated February 5, 1916, which was delivered to the plaintiff on July 27, 1916.
The defendant's answer alleged that on August 9, 1916, the defendants Hildebrand and Lettich offered to the plaintiff the sum of $3,146.60 and demanded of plaintiff the return and cancellation of said note and mortgage and a satisfaction thereof, which offer the plaintiff refused, and, that defendants have ever since been ready, willing, and able to pay said sum of money in discharge of said note and mortgage.
The court found "that on August 9, 1916, the defendants, Hildebrand and Lettich, offered to plaintiff in gold coin, the sum of $3,146.50, and demanded from plaintiff an assignment of said note and mortgage"; that said defendants did not then state whether the offer was on their own behalf as junior mortgagees, or as owners, or as agents for the owner of the real property, and that the plaintiff rejected *272 said offer because it was insufficient in manner and in the amount offered.
A motion for a new trial was made on the general ground of the "insufficiency of the evidence to justify the decision." The appeal is supported by a bill of exceptions which contains no specifications of the particulars wherein the evidence is insufficient. [1] Consequently "the question of sufficiency of the evidence to sustain the findings cannot be considered." (Millar v. Millar,
According to the findings, the offer made by the defendants to the plaintiff on August 9th was not an offer to pay or discharge the mortgage debt, but was, in effect, an offer of the money, coupled with a demand for an assignment of the mortgage to the defendants. [2] It was an offer to purchase the note and mortgage, not an offer to pay or discharge the mortgage debt. Such an offer does not operate either to extinguish the obligation for the debt or to terminate the lien of the mortgage. The court did not err in giving judgment for the amount due on the mortgage with interest, including the reasonable fee for plaintiff's attorney in foreclosing the mortgage, and costs.
In addition to these items, the court allowed to the plaintiff and included in the judgment, sums amounting to $159.50, on account of expenditures made by the plaintiff before the assignment to him of the said mortgage as the costs and expenses of certain litigation arising out of an action by Martin against the defendants to quiet the title to the same tract of land. In that case an order was made requiring the Humboldt Savings Bank to assign the note and mortgage to the plaintiff, and the defendants sought to annul the order by a proceeding in certiorari in the supreme court, in which they were unsuccessful. (Hildebrand v. Superior Court,
It is ordered by the court that the judgment appealed from be modified by deducting from the amount thereof the sum of $159.50 and that as so modified said judgment be affirmed.
Olney, J., Wilbur, J., Lawlor, J., Lennon, J., Sloane, J., and Angellotti, C. J., concurred.
Rehearing denied.
All the Justices concurred, except Wilbur, J., Lennon, J., and Sloane, J., who were absent.
