Cassinella v. Allen

SLOSS, J.

Action to foreclose a mortgage of real estate. The defendant Luella F. Allen appeals from a judgment in favor of plaintiff and from an order denying her motion for a new trial.

[679]

On September 15,1900, the defendant James H. Allen made and delivered to C. H. Whitmore his promissory note for three hundred dollars, payable three years after date, with interest at the rate of eight per cent per annum, compounded annually. The note contained a promise to pay all legal expenses and attorneys’ fees incurred in the collection of the note. At the same time the maker executed, as security for the note, a mortgage of thirty acres of land in Stanislaus County. The mortgage provided for counsel fees of twenty per cent of the amount found due, in the event of foreclosure.

On July 29, 1904, Whitmore transferred the note and mortgage to the plaintiff. The complaint, filed in September, , 1904, after setting forth the note and mortgage in full, and plaintiff’s ownership, alleged that nothing had been paid except interest to September 15, 1901, that the defendants, other than the maker, claimed an interest in the land, and that plaintiff had been compelled to employ an attorney, whose services were reasonably worth seventy-six dollars. The prayer was for three hundred dollars, with interest, for the usual decree of foreclosure and for general relief. There was no specific prayer for counsel fees.

The defendant Luella F. Allen demurred. The case remained in this situation for a number of years, that is, until November, 1911,"when she filed an answer and cross-complaint. Her demurrer was then withdrawn. In her answer Luella F. Allen alleged that, prior to the commencement of the action, James H. Allen, the mortgagor, who was then her husband, had conveyed to her ten acres of the mortgaged property. She alleged that she had tendered to plaintiff the full amount due on the mortgage, which plaintiff had refused, and, further, that after James H. Allen had conveyed to her, the plaintiff had released from the lien of the mortgage, without her consent, the remaining twenty acres, which were worth more than the entire mortgage debt.

With respect to these matters, the court found that at the time of the execution of the mortgage, James H. Allen was the owner of the ten acres now claimed by Luella F. Allen, and that he thereafter conveyed same to her subject to said mortgage, which had been executed to secure the payment of the purchase price of said land. It was found that, when the mortgage was made, James H. Allen was not the owner of the remaining twenty acres, but held the same in trust for