Redman v. Purrington

65 Cal. 271 | Cal. | 1884

Ross, J.

—Four several promissory notes, together with a mortgage to secure their payment, were executed by T. F. Purrington to one Sutton. One of the notes was for $1,500, payable three months after date, another was for $1,000, payable one year after date, another was for $1,000, payable two years after date, and the fourth was for $3,000, payable three years after date. The $1,500 note was paid. The $3,000 note was sold and assigned by Sutton to plaintiff for value—he (Sutton) retaining the $1,000 notes. In the absence of any special agreement to the contrary, the assignment, under such circumstances, of the $3,000 note, would have carried with it a pro rata interest in the security. (Grattan v. Wiggins, 23 Cal. 30; Jones on Mortgages, § 822.) But in this case the finding is that it was expressly agreed between Sutton and the plaintiff that the assignment of the $3,000 note should- carry with it a pro rata interest in the mortgage; and of the fact of the assignment of the $3,000 note, Kenyon was aware at the time of his subsequent purchase from Sutton, of the two $1,000 notes.

The mortgage contained the covenant: “ In case default be made in the payment of either principal or any installment of interest, as provided, then the whole sum of principal and interest shall be due at the option of the party of the second part (the mortgagee), and suit of foreclosure may be brought immer • diately.” This covenant inured to the benefit of the assignees - of the mortgagee, and as the interest upon the $3,000 note was not paid as provided, and the plaintiff thereupon elected to con- • sider the principal sum as well as interest due, the suit was well-brought. Other points made do not require special notice. "We think the judgment right.

Judgment and order affirmed.

McKinstry, J., and McKee, J., concurred.

Hearing in Bank denied.