Grangers' Business Ass'n v. Clark
Before: Gibson
Synopsis
Pleading — New Matter in Answer — Replication. — A replication traversing new matter alleged in the answer is unnecessary, and has no place in our system of pleading; hut such new matter must, on the trial, he deemed controverted by the opposite party.
Id. —New Matter in Avoidance oe Answer — Evidence. —The plaintiffs must he considered to have pleaded any new matter in avoidance of a counterclaim or affirmative defense set up in the answer, and may give evidence of such matter in avoidance.
Id. — Foreclosure of Mortgage — Plea of Payment — Evidence of Agreement in Avoidance — Application of Payments. —In a suit to foreclose a mortgage upon real estate, where the defendant pleads payment of the mortgage note out of the proceeds of the sale of a crop of defendant’s wheat, upon which plaintiff held a chattel mortgage to secure the same note, plaintiff must be deemed to have pleaded in avoidance of such defense an agreement that the grain, when harvested, should be held as security for other advances made and to be made to and for the defendant, and that the proceeds of the sale of the grain should be applied first in payment of such advances, and the remainder, if any, to the payment of the note; and the court may receive evidence in support of such agreement.
Statute of Frauds—Oral Agreement—Mortgage on Crop — Pledge of Harvested Crop for Advances — Extinguishment of Mortgage.— Section 2922 of the Civil Code, requiring a writing to create, renew, or extend a mortgage, does not render incompetent a verbal agreement to divert harvested grain from the satisfaction of the debt secured by a chattel mortgage on the growing crop, and to convert the grain into a pledge to secure other and subsequent advances from the mortgagor to the mortgagee. Such agreement does not create a chattel mortgage, but operates to extinguish the mortgage on the crop.
Foreclosure of Mortgage — Allowance of Attorney’s Fee.—The trial court is in duty bound to allow only a reasonable attorney’s fee for the foreclosure of a mortgage, and the stipulation in the mortgage respecting such fee is not controlling.
Id. — Correcting Allowance upon Appeal. — When the attorney’s fee fixed by the trial court exceeds a reasonable sum, it will be corrected by this court upon appeal.
Gibson, C. Defendant appeals from a judgment and order denying a new trial in an action to foreclose a mortgage on real estate.
The defendant, on the 19th of March, 1880, being indebted to the plaintiff corporation in the sum of $5,135, for money loaned to and expended for him, gave to [203]plaintiff his note for that amount, payable one day after date, bearing interest at the rate of one per cent per month from date, payable quarterly, and if not so paid, to be compounded quarterly. To secure this note he executed and delivered to' plaintiff, on the same date with that of the note, two mortgages, one upon 160 acres of land in Alameda County, and the other a chattel mortgage upon a certain crop of wheat then growing upon about 480 acres of land, also in the same county. At divers times from the same day this transaction was had until July 1, 1881, the plaintiff loaned to and advanced for defendant other amounts of money, aggregating the sum of $3,407.06. Previous to the execution of the note and mortgages, the defendant had delivered a lot of hay, worth $703, to the plaintiff, that it had not accounted for to him, and it was agreed that the amount should be credited upon the note. Plaintiff, however, first deducted thirty dollars that had been advanced to the defendant, and credited the remainder upon the note.
The crop of wheat described in the chattel mortgage was by the defendant harvested prior to October, 1880, and placed in a warehouse at Livermore, and receipts therefor obtained in the name of the plaintiff, which were delivered to it. On a sale of this wheat by the plaintiff on July 1,1881, it realized the sum of $4,061,99. This amount the plaintiff applied to the payment of defendant’s indebtedness of $3,407.06, which had, as above shown, accrued after the making of the note and mortgages, and the overplus was applied upon the said note.
Defendant contends that the whole amount realized from the wheat should have been applied upon the note. This raises the principal question, upon the solution of which the case depends.
Plaintiff, in its complaint, seeks to foreclose the mortgage upon the real estate, and admits therein that a certain amount has been paid upon the note, which is [204]
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