Equitable Life Assurance Society v. Milstein

DORAN,

J.—The above action was instituted to foreclose a mortgage upon the property of defendant Grace Milstein located in Beverly Hills, California, which mortgage had been executed on July 24, 1929, in favor of the Leo P. Schaefer Co., a corporation, for the purpose of securing the payment of principal and interest upon a promissory note of the defendant in the sum of $11,000. The Leo P. Schaefer Co. subsequently assigned the note and mortgage to plaintiff, The Equitable Life Assurance Society, a corporation, the

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former company being the mortgage loan agent and correspondent in Los Angeles County for the latter.

The last payment upon the principal of said note was due August 1, 1934. The complaint, filed April 22, 1938, was in the usual form and alleged: “That neither the whole nor any part of the principal amount of said promissory note which became due and payable in installments as provided therein has ever been paid; that default has been made in the payment of the principal amount of said note and in the payment of each installment of principal which became due and payable under the provisions of said note; that neither the whole nor any part of the interest payable under the provisions of said note has ever been paid subsequent to the semi-annual installment of interest due and payable under the terms of said note on August 1, 1937; that default has been made in the payment of the semi-annual installment of interest that became due and payable on February 1, 1938, and subsequent to August 1, 1937.”

On May 4, 1938, summons and a copy of the complaint were allegedly served upon defendant Grace Milstein, appellant herein. No appearance was filed on her behalf, and thereafter, on May 16, 1938, defendant’s default was entered. An answer consisting of denials of the allegations of the complaint was filed by defendant Grace Milstein with the clerk of the court on that day, namely, May 16th, subsequent to the default’s being taken. In particular, with reference to paragraph VII of the complaint, above quoted, the verified answer denied: “ ... generally and specifically, each and every allegation contained in paragraph VII of the plaintiff’s complaint, and alleges the fact to be that all of the payments specified and set forth in the mortgage and the note have been paid, and further alleges the fact to be that the principal has been reduced by successive payments according to the terms and tenor of the said mortgage. This defendant further alleges that the whole of the principal is not due, not owing and not unpaid, and that the action herein has been brought prematurely and in violation of the terms of the said mortgage; that all taxes, assessments, levies and other indebtedness have been paid, and the contract of mortgage has been faithfully performed by this answering defendant, and that all installments as provided in the said mortgage have been properly and duly paid in lawful money of the United States. ’ ’