Leahy v. Warden

SHAW, J.

This cause was transferred to the district court of appeal for the second district for decision. In that court the judgment was affirmed upon the following opinion prepared by Justice Allen:

“The action was one to foreclose a mortgage executed to plaintiff’s assignor by one Jackson, defendants’ grantor. The note and mortgage were dated August 15, 1908; note due three years after date, bearing interest at the rate of 11 per cent per annum, with a condition that if default be made in the payment of any installment of interest the principal should become due, at the option of the holder.

“The findings of the court are to the effect that, notwithstanding the rate of interest specified, a contemporaneous written agreement was entered into whereby 3 per cent of the interest was to be rebated upon payment of taxes, which taxes had been paid.up to September 27, 1909, by the makers of the note; that defendants’ grantor had paid interest at the rate of 8 per cent per annum each and every quarter up to and including August 15, 1909; that no payments of interest were made thereafter; that these payments of interest were made voluntarily and in accordance with the terms of the note. The court further finds that the note and mortgage were made in consideration of a promise of the payee to pay a building contractor, then engaged in the construction of a house for the maker of the note, $2,750 and an additional sum of $250 to cover incidental and extra expenses in connection Avith the construction of such house; that the payee advanced

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only the sum of $2,290, together with $65 incidental expenses, which was the entire amount of the advances made; that the sum of $710, the difference between the sum so advanced and the $3,000, remained unadvanced; that after such advances were made, the maker of the note and mortgage conveyed the premises so mortgaged, subject to said mortgage, to appellants, and, in addition thereto, assigned and transferred whatever claim the grantor had against the payee of the note as to the sum of $710, the unadvanced amount evidenced by the note. The court found that there was due and owing upon said note and mortgage the sum of $2,290, with interest at the rate of 8 per cent per annum, from August 15, 1909, compounded quarterly, to the date of judgment; and further, that defendants had expended $7.50 in searching title to the mortgaged premises, and that $200 was a reasonable attorney’s fee for the foreclosure proceedings, and directed a sale of the mortgaged premises in satisfaction thereof. From the judgment alone, upon the roll, defendants appeal.