Lawrence v. Oakes

SPENCE, J.

The Stewart Fruit Company, one of the defendants in the above-entitled action, through E. G. Porter, receiver for said company, filed its cross-complaint against William C. Oakes and Mary Rose Oakes as cross-defendants seeking to foreclose a mortgage covering crops grown upon the premises of said cross-defendants. Fromi a judgment in favor of cross-complainant decreeing foreclosure of said mortgage, cross-defendants appeal.

We will refer to said cross-defendants as the mortgagors and to the Stewart Fruit Company as the mortgagee. On November 21, 1922, the mortgagors who were indebted' to the mortgagee in the sum of $8,864.97 executed a promissory note to cover said indebtedness secured by the mortgage in question. The mortgage covered “all crops of citrus fruits now growing and to be grown during the seasons of 1922-1923-1924 and 1925 upon the trees and vines standing, growing and to be grown during said seasons” upon the land's therein described. It further provided that “in the event said promissory note shall not be fully paid at maturity, it shall in like manner be secured by, and this mortgage shall likewise fully cover, all crops of the

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same character, growing or to be grown upon said premises, until said promissory note shall be fully paid, both principal and interest”. It further provided that it was also given “to secure all other indebtedness and obligations that may now or hereafter be due, owing or existing from said mortgagors ... to said mortgagee . . . during the continuance of this mortgage, not to exceed in all the sum of five thousand dollars, exclusive of the sum mentioned in said promissory note with interest ...” Thereafter advances were made regularly by the mortgagee to the mortgagors until about February, 1926, when the company went into the hands of the receiver. These advances were charged to the mortgagors upon the books of the mortgagee and credit entries were made for the crops delivered to the mortgagee by the mortgagors under the terms of the mortgage. In the cross-complaint it was claimed that the sum of $19,431.38 remained unpaid to the mortgagee upon the promissory note and advances after crediting the mortgagors with the sum of $13,080.37 for crops delivered to the mortgagee. By way of defense the mortgagors claimed that at the time of the execution of the promissory note the amount due to the mortgagee was $3,864.97 and not $8,864.97. They further claimed that it had been mutually agreed between them and mortgagee that they should have a further credit of $7,000 upon the 1925 crop. Upon both of these issues raised by way of defense the evidence was conflicting. The trial court found that the sum of $13,864.97 was due, owing and unpaid on account of said promissory note and said advances. By the terms of the mortgage the lien was limited to this amount and as indicated by the trial court, a finding of the amount of indebtedness in excess of said sum would have been immaterial in the foreclosure proceedings.