McCoy v. Buckley

CHIPMAN, P. J.

This is an ordinary action to foreclose a mortgage executed by defendant I. J. Buckley upon certain land to secure the payment of his promissory note executed by said defendant and payable to defendant. The usual judgment on foreclosure was entered by the court from which defendant I. J. Buckley alone appeals on the judgment-roll. The court found that defendant Mary Buckley claims and has no interest in the mortgaged premises. The complaint is verified and the execution of the note and mortgage and nonpayment set forth in the complaint, not being denied, are admitted. The first defense made in the answer is a denial of the reasonableness of attorneys’ fees claimed in the com

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plaint and denials of the averments that plaintiff had agreed to pay and has incurred any liability for attorneys’ fees. The answer also alleges that the action, although the complaint is verified by plaintiff, was commenced without the knowledge or consent of plaintiff, and has been prosecuted for the purpose of enabling the attorney for plaintiff, to collect a fee. The mortgage provides for payment of attorneys’ fees in case of foreclosure, and the court found against defendant upon all the foregoing defenses.

As a further defense against the claim for attorneys’ fees the answer sets forth at much length certain facts which may be summarized as follows: That in 1895, plaintiff being the then owner of the mortgaged premises, conveyed the same to one Jacobs who at the same time executed and delivered to plaintiff .a deed of trust to the property to secure the payment of his promissory note given to her, and that the said instrument created a lien on the said premises and so remains as a cloud upon defendant’s title to the land. It is not alleged that the indebtedness so secured has been paid. It is then averred that “long prior to the commencement of this action, the defendant offered plaintiff, in writing, if she would satisfy and discharge of record the lien created by said instrument in writing, this defendant would immediately thereafter pay to her the principal and interest due to her on the promissory note set forth in the complaint, . . . but plaintiff refused and neglected to comply with said offer.” It is further averred that “long prior to the commencement of this action defendant was able and willing to pay to plaintiff the whole amount of principal and interest due on said promissory note” upon the discharge of said lien, all of which plaintiff well knew. “And this defendant now comes and offers to pay to the plaintiff herein the full sum of principal and interest which is due to her upon said promissory note, set forth in plaintiff’s complaint (not including, however, attorneys’ fees and costs), immediately upon the satisfaction and discharge by her, of record, of the lien and cloud upon his title to the land and premises mentioned and described in the mortgage set forth in said complaint.” Defendant prays that plaintiff take no judgment herein for attorneys’ fees; that defendant recover judgment for $200, as damages for the wrongful prosecution by plaintiff of this action and for his