Beach v. Waite

JAMES, J.

On February 7, 1908, M. P. Waite, one of the defendants in this action, executed his promissory note for one thousand five hundred dollars in favor of Norvin R. Strobridge and Selma S. Strobridge, which note was made pay

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able six months after date, with interest at the rate of eight per cent per annum, and which provided for the payment of attorneys’ fees in the event of suit. To secure the payment of this note a mortgage was given covering certain lots of land in the county of Kern. On February 20th Waite sold this land to one Mullen, the deed of conveyance containing a recital that the land was subject to the Strobridge mortgage which the vendee assumed and agreed to discharge. On August 18, 1908, the mortgage debt not having been paid, action was brought by the mortgagees to obtain judgment of foreclosure and for any deficiency that might result upon sale of the property. On the eighteenth day of August, 1908, notice of the bringing of this action was duly recorded in Kern County. Waite’s grantee, Mullen, who, with Waite*, was made a party defendant in the foreclosure action and being a necessary party thereto, could not be found within the state of California and service of summons was ordered to be made upon him by publication, and personal service was also made at Brooklyn in the city of New York. The proceedings had under which service was made upon Mullen were all regular and in due form. Judgment in the foreclosure action was entered on June 24, 1909, and thereafter sale of the mortgaged premises was made to one Henry Ruettgers for an amount sufficient to satisfy the mortgage debt, together with attorneys’ fees and necessary costs. On July 10, 1909, Mullen gave a quitclaim deed of his interest in the land to Elizabeth Schwartz, who in turn, on the same day, executed to plaintiff herein a deed in like form. Defendant Kaye is an attorney at law and was employed by the Strobridges to represent them in the action of foreclosure and he did appear in that action and conducted the proceedings to their conclusion. It appears from the evidence that defendant Waite, the mortgagor, was desirous of avoiding possible liability onaeeount of the mortgage indebtedness which had been assumed by his grantee, and after the action of foreclosure was brought and before judgment he negotiated with the -Strobridges regarding a settlement of the matter. It was finally agreed by the Strobridges to accept from Waite one thousand five hundred dollars, being the principal amount of the mortgage debt, and the Strobridges, in consideration of that payment being made to them, executed a written assignment