Klokke v. Escailler

THE COURT. Foreclosure of a mortgage on real estate. The complaint is verified. Plaintiff had judgment, from which defendant, Catharine S. Escailler,appeals on the judgment-roll alone. Appellant objects to the judgment upon two grounds: 1. That it was error to allow attorney’s fees; and 2. That the count erred in failing to find upon the issues raised hy her answer.

1. The mortgage was given to secure the payment of a promissory note. Upon the subject of attorney’s fees it contained the following provision: Upon default ‘The mortgagee may foreclose this mortgage, and may include in said' foreclosure a reasonable counsel fee, to be fixed hy the court, together with [298]all payme'nts made by the mortgagee for insurance upon the buildings on said premises, and for any adverse claims to the mortgaged property, for searching title to the mortgaged premises, to the execution hereof, and for taxes on said premises, other than the taxes on this mortgage, or the money hereby secured, all of which payments the mortgagee is hereby authorized to make, and the same, with interest thereon at the same rate as provided in said promissory note, shall be deemed to be secured by this mortgage and payable to the mortgagee or assigns in and out of -the proceeds of the sale under said foreclosure.” Unless the mortgage be given to secure the payment of attorney’s fees, such fees may not be included as a part of the mortgage lien upon foreclosure. If the mortgagor contracts for the allowance of such attorney’s fees, but does not secure the payment of them in the mortgage, these fees are in the nature of a special damage, which may be pleaded and recovered against the mortgagor, but for them the mortgagee may have only a personal judgment. (Prescott v. Grady, 91 Cal. 518.) The mortgage here under consideration declares that in the foreclosure may be included a reasonable counsel fee, together with all payments made by the mortgagee for specified purposes, all of which payments shall be deemed to be secured by the mortgage. A mortgage security is given, therefor, for the payment of the promissory note and for the repayment of such designated sums as may have been expended by the- mortgagee; but, while much care is shown to bring these expenditures strictly within the mortgage, it is nowhere declared that the mortgage lien shall extend to and protect the attorney’s fees. In this respect the case is identical in principle with that of Irvine v. Perry, 119 Cal. 352, and with the cases there cited. It follows, therefore, that while plaintiff is entitled upon proper showing to recover attorney’s fees in his action, tie is not entitled to have those fees included in the amount of the mortgage lien. He must rely alone upon a personal judgment. -The averment in the complaint “that the sum of two hundred dollars is a reasonable sum to he allowed plaintiff as his attorney and counsel fees for the foreclosure of this mortgage” is a sufficient averment upon this point.