Security-First National Bank v. Lamb

THE COUBT.

This is an appeal from a default judgment in a foreclosure action, entered against defendant Ellen Augusta Donovan, after a demurrer to her answer had been sustained, with leave to amend. The facts out of which this controversy arose, as discovered by the record, are as follows:

[66]

On October 3, 1925, Josephine M. ■ Lamb and Ellen Augusta Donovan, joint owners of certain real property, executed their joint promissory note in the sum of $4,000, payable to the plaintiff bank October 3, 1928. This note was secured by the mortgage which is the subject of this action. Subsequently, the plaintiff bank granted an extension until October 3, 1931. Appellant Augusta Donovan performed all of the terms and conditions of the mortgage, and paid interest on the note, up to the time this foreclosure action was commenced, with the exception that a certain street assessment levied by the city of Los Angeles was not paid. The ordinance of intention in reference to this assessment was passed by the city council on September 4, 1925, approximately a month before the mortgage involved herein was executed. The city continued proceedings under the Street Opening Act of 1903 (Cal. Stats. 1903, p. 376), condemned certain property necessary for the improvement, and, on June 20, 1928, assessed the property here involved in the sum of $7,500. Defendant Augusta Donovan filed a written protest against the assessment, as required by law, which protest was denied on November 9, 1928. On November 14, 1928, the city slightly lowered the assessment against the property involved herein, making the final assessment the sum of $7,088. On December 31, 1928, defendant Augusta Donovan commenced an action in the superior court, contesting the validity of the entire assessment procedure. On May 17, 1929, the trial court upheld the validity of the assessment. Defendant Augusta Donovan thereupon perfected her appeal from the judgment so entered. This court, on June 11, 1930, upheld the validity of the assessment

(Donovan

v.

City of Los Angeles,

209 Cal. 552 [288 Pac. 1083]).

In the meantime, on April 10, 1929 (before the trial court had rendered its decision in the assessment case, and while that action was pending) the plaintiff mortgagee paid to the city of Los Angeles the sum of $7,088 in full satisfaction of the assessment. After having paid the assessment, which it is alleged was a prior lien and a cloud on the title, the mortgagee demanded of the mortgagors the sum of $7,088, which it had advanced to pay the assessment. The mortgagors refused to pay the same, whereupon the mortgagee instituted this foreclosure action, electing to declare the