Rock Ridge Park Co. v. Wells (1915) · DecisionDepot

Rock Ridge Park Co. v. Wells

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Apr 28, 1915 No. Civ. No. 1360.Published

Before: Hart

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Holding. The court held that the complaint sufficiently stated a cause of action for mortgage foreclosure, as the plaintiff's ownership of the note at the time of exercising the acceleration option was sufficiently alleged and supported by the presumption of continuing ownership.

Issues

Whether the complaint failed to state a cause of action by omitting a direct allegation of ownership of the note at the time the acceleration option was exercised.
Whether the complaint was deficient for failing to explicitly allege the delivery of the promissory note.

Disposition. affirmed

Quotations verified verbatim against the opinion

“this condition of ownership at that time is presumed to continue, and it was, therefore, not necessary to directly allege that the plaintiff was the owner of the note at the time of the exercise of the option.”

“we are convinced that it sufficiently, even if inartifieially, states a cause of action and is, therefore, good as against a general demurrer.”

Synopsis

APPEAL from a judgment of the Superior Court of Alameda County. Everett J. Brown, Judge.

The facts are stated in the opinion of the court.

HART, J.

The plaintiff brought this action for a decree foreclosing a certain mortgage executed and delivered by the defendants to the plaintiff to secure the payment of a promissory note for the sum of forty-eight thousand dollars, which was executed by said defendants in favor of the plaintiff.

The note in suit, which is set out in the complaint

in haec verba,

was made and is dated on the fifteenth day of March, 1912, and was payable “on or before” three years after its date. It called for interest at the rate of six per cent per annum, payable annually, and further provided: “And in case said interest is not paid within one month after the same becomes due, it shall be added to the principal and bear a like rate of interest until paid, and the whole of said principal and interest shall forthwith become due, at the option of the holder thereof, without notice.”

This action was filed on the eighth day of May, 1913, and it is alleged in the complaint “that no interest on said principal sum mentioned in said promissory note, and in said mortgage, has been paid; that, on the twenty-seventh day of November, 1912, the sum of four thousand six hundred dollars in United States gold coin, on account of the principal sum mentioned in said promissory note and mortgage, has been paid; that no part of the balance of said principal, to wit, the sum of forty-four thousand three hundred dollars, has been paid, and the whole thereof is now due, owing and unpaid from said defendant, C. B. Wells, to plaintiff,” etc.

[283]

The complaint further alleges that, on the sixteenth day of April, 1912, “and during the time of default in payment of interest, and more than one month after the same became due, the said plaintiff, . . . etc., exercised its option to declare, and did declare, the whole amount of principal and interest to be immediately due and payable, and the same is now due and payable, as heretofore alleged.”

It is then alleged that the “plaintiff is now the lawful owner and holder of said promissory note and said mortgage. ’ ’

The mortgage is by the complaint expressly made a part thereof, and that instrument contains a copy of the note pleaded in full in the complaint.

Rock Ridge Park Co. v. Wells

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Synopsis

HART, J.

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