Coyne v. Mason

CRAIL, P. J.

On the first page of her brief the plaintiff succinctly states the questions involved on this appeal as follows : “Is the Moratorium Statute of October 25, 1933 (Chapter 1057—Statutes of 1933, page 2717), valid, and was the trust deed sale held in this instance in violation of that statute ?’ ’

The plaintiff and her husband, the cross-defendant, executed to the insurance company their promissory note for the sum of $10,000, with interest at 6 per cent per annum, in which they agreed to pay $110.50 per month, including principal and interest until the said sum had been fully paid. The note contained the following further promise: “The makers hereof further agree to pay in addition to the sum of $110.50, per month, the further sum of $31.05, as a monthly installment covering premium on an insurance policy for the sum of $10,000.00 issued by the holder to D. Joseph Coyne. The total monthly payments to be made shall be the sum of $141.55, each, in advance. If any monthly installment is not paid as hereinbefore specified when due, this whole note, in-

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eluding both principal and interest, may, at the option of the holder, without notice to the maker, be treated as due and collectable. This note is secured by a Deed of Trust of even date herewith.” They also executed a trust deed upon real property improved with a single family dwelling to secure the said note and agreed therein that said sums should be paid monthly during the existence of the trust deed. These payments were duly made until the one which fell due on the 1st of February, 1933, which was not paid. Plaintiff claims that in March, 1933, she was able and willing to pay and offered to pay the instalments of $110.50. Defendants dispute this, and claim that there is substantial evidence to sustain the implied finding of the trial court that no such offer was made. It is not necessary for us to determine this dispute, however, for the reason that in any event plaintiff did not offer to pay and never offered to pay and never did pay the delinquent monthly payment on the life insurance policy, which by the terms of the note she had promised to pay on February 1, 1933. No further payments were made. On July 10, 1933, the insurance company recorded its notice declaring the entire indebtedness to be immediately due and also notice of its election to cause the property to be sold as provided in the trust deed, and the trustee thereunder proceeded to foreclose and sell the property. The insurance company became the purchaser. The plaintiff refused to surrender possession, but, on the contrary, commenced this action against the insurance company to quiet her title to the property. The court rendered judgment in favor of defendants, and it is from this judgment that plaintiff and cross-defendant appeal.