Van Loo v. Van Aken

Beatty, C. J. Action to foreclose a mortgage. A general demurrer to the complaint for want of facts was sustained by the superior court, and, plaintiff being unable to amend, judgment was entered for the defendants, from which the plaintiff appeals. The sole question to be determined is whether the complaint states a cause of action.

[270]It is alleged that on the 9th of December, 1890, the defendants executed and delivered to the plaintiff their promissory note in the following words and figures:

“$5,000. Fuesno, Oal., December 9, 1890.

“Five years after date, without grace, for value received, we promise to pay to Kingsley Van Loo, or order, in the city of Fresno, the sum of five thousand dollars, with interest thereon at the rate of eight per cent per annum from date until paid. Both principal and interest payable in gold coin of the government of the United States. Said interest payable annually, and, if not so paid, the interest to draw interest the same as the principal, and, if this note is collected by suit, I agree and promise that the court having jurisdiction allow a reasonable attorney’s fee together with all legal expenses to be made part of the judgment.

“Louise Van Aken,

“T. Van Aken.”

That at the same time the defendants executed a mortgage to secure the payment of said note according to its terms; that on March 31,1893, the date of the commencement of the action, no part of the principal or interest of the note had been paid; that the mortgaged premises cannot be sold in portions without injury; that the defendants have violated their covenant to insure, and are insolvent, etc.

It is claimed by appellant that on this state of facts— the sum of eight hundred dollars being past due for interest — he had a right to commence his action to foreclose before the maturity of the note, notwithstanding the absence of any stipulation in the note or mortgage giving him that right.

The decision of this court in Brodribb v. Tibbets, 58 Cal. 6, is directly opposed to this proposition, but appellant contends that the decision in that case is not law, and that it has been overruled in the later case of Yoakam v. White, 97 Cal. 286. It can scarcely he said that the latter case overrules the former, though it does