Bank of Napa v. Godfrey

Works, J. On the nineteenth day of March, 1885, the plaintiff brought this suit to recover on a promissory note for twelve hundred dollars, bearing date February 7, 1884, payable two years after date, with interest at the rate of eight per cent per annum, payable semiannually, and to foreclose a mortgage given to secure the payment of the same.

The complaint is in the usual form, and alleges that the whole amount of the note is due and unpaid except certain items of interest, which are stated. The prayer is, that “the usual decree may be made for the sale of the premises, by the sheriff of said county, according to the law and the practice of this court,” and for the sale and application of the proceeds in the usual form. The complaint was not verified, and the answsr is a general [614]denial. The court found that there was due on the note a semi-annual installment of interest, amounting to the sum of $45.60, and interest thereon; that by the terms of the note and mortgage there would become due on the seventh day of August, 1885, a like installment of interest; and on the seventh day of February, 1886, another of said installments of interest, together with the whole of the principal of said note, would become due and payable; and fixed the attorney’s fees at fifty dollars. The decree of the court was in accordance with these findings, and adjudged “that all and singular the mortgaged premises mentioned in the said complaint and hereinafter described, or so much thereof as may be necessary to raise the amount due the plaintiff for the interest now due and costs in the suit, and expenses of sale and attorney’s fees, be sold according to law,” etc. “And it is further adjudged and decreed that hereafter as more shall become due, according to the terms of said note and mortgage, and remain unpaid, the plaintiff may apply to the court for a decree that more of the mortgaged premises be sold to satisfy the same, with costs and attorney’s fees.”

On the fifteenth day of March, 1886, after the whole of said note, principal and interest, had become due, the plaintiff filed in the court below what is termed an “amended petition,” reciting fully the proceedings had in the cause, and alleging that the other installments of interest and the principal of said note had become due, and the amounts thereof, and that no sale had been made under the former decree of the court; that the same remained wholly unexecuted, and that the mortgaged premises were worth less than the amount due. The prayer of this pleading is, “that the former decree, so far as it relates to the. sale of the whole or any part of the mortgaged premises, be vacated and set aside,” and for a second decree of foreclosure.