San Francisco Bank v. National Radio Co.

BURROUGHS, J.,

pro tem.

This is an action upon a promissory note and to foreclose a real estate mortgage given to secure the payment of said note. Plaintiff had judgment, and the defendant, Jessie S. Gregory, appeals therefrom.

The note and mortgage in suit were executed September 22, 1922, by the defendant National Radio Company, a corporation, in the principal sum of $30,000.

Immediately after the execution thereof the said National Radio Company executed a deed of trust of the property described in said mortgage, in favor of the defendant Jessie S. Gregory, to secure a loan in the sum of $17,500. Thereafter said property was sold by virtue of the terms of said deed of trust and title passed to said Jessie S. Gregory, subject to the prior lien of plaintiff’s mortgage.

In appellant’s opening brief appears the following statement: “The only question presented by this appeal relates to the reasonableness of the allowance of $3600.00 as and for attorney’s fees allowed to plaintiff in connection with the enforcement of plaintiff’s rights under the mortgage.”

[115]

Amplifying the foregoing statement by the record in this case, it appears that the trial court allowed to the plaintiff an attorney fee of $2,000 in litigation affecting the title to the mortgaged premises, and the further sum of $1,600 as and for the services of plaintiff’s attorney in this foreclosure suit.

The mortgage contains a provision that if during the existence of the mortgage there be commenced or pending any suit or action affecting the premises described therein, or if any adverse claim for or against the premises, or any part thereof, be made or asserted, the mortgagee might appear in said suit or action and retain counsel therein and defend the same or take such other action as it might be advised, and for said purposes might pay and expend such sums of money as it might deem necessary, and all sums of money expended should bear interest at the rate of one per cent per month and should be secured by the mortgage and be a lien upon the mortgaged property and deducted from the proceeds of any sale thereof.

In accordance with the foregoing provision of said mortgage, the commencement of an action affecting the mortgaged premises and the title thereto, in which action this plaintiff was made a party defendant, and the necessity for the plaintiff to retain counsel and appear therein, is alleged in the complaint. There is then set forth in appropriate language allegations of services rendered in said action covering a period of several months and including proceedings and hearings in the superior court, the district court of appeal and the supreme court of the state of California. It is further alleged that plaintiff expended in the defense of said action the sum of $2,000 as counsel fees and that no part thereof nor the interest thereon has been repaid to plaintiff.