Feraud v. Anaheim Investment Co.

SPENCE, J. This is an appeal by certain defendants from a judgment in favor of plaintiff in an action to foreclose a mortgage.

In September, 1924, defendant Anaheim Investment Company and others executed a promissory note in favor of plaintiff, which note was secured by a mortgage on certain real property. The plaintiff herself owned a life estate in said property. The note was an unusual one, reading in part as follows: “For Value Received, the undersigned, jointly and severally promise to pay to Marie Feraud, at 2289 Cambridge Street, Los Angeles, California, the sum of Twelve Hundred ($1200.00) Dollars per annum for and during the period of her natural life, said sum to be paid in monthly installments of One Hundred ($100.00) Dollars each, commencing on the first day of October, 1924. . . . This obligation is secured by a mortgage of even date herewith, and if any of said installments shall not be paid when due, then the whole sum due and to become due under this obligation, computed according to the American experience table of mortality, shall after ten days written notice of such default, given to the Anaheim Investment' Company [229]by registered mail addressed to said Company at Anaheim, California, become immediately due and payable at the option of said Marie Feraud.” The mortgage which was given as security for the note was recorded on September 17, 1924. A copy of said note was set forth therein.

In 1929 the mortgagors executed a second mortgage on said premises in favor of defendants Meserve & Meserve for the purpose of securing an obligation to said last-named mortgagees. Said second mortgage was duly recorded and was subsequently assigned, together with the obligation secured thereby to defendant Edwin A. Meserve. Following the description of the real property in said second mortgage is found the provision “Subject to the rights of Marie Feraud therein.”

In 1930 and 1931 the mortgagors defaulted in the payment of certain installments due upon plaintiff’s note, which delinquent installments totaled $700. Plaintiff served written notice of default as required stating therein that unless said payments were made within ten days, she would exercise her option and declare the whole sum due as provided in said note. No payments were made and plaintiff immediately commenced this action. The trial was brief as there was no dispute regarding the material facts. It appears that plaintiff was born on March 1, 1882', and that her expectancy was twenty-one years, seven and one-half months, when computed according to the American experience table of mortality. The trial court found that the total amount due to plaintiff was the sum of $26,700, being the amount due for twenty-one years and eight months after the action was brought, together with the $700 which had become delinquent prior to the commencement of the action. Judgment was entered in favor of plaintiff whereby it was adjudged that said sum was owing and unpaid to plaintiff on said note, that the mortgage given to plaintiff to secure said obligation was a first lien upon the remainder interest of the mortgagors and that the claims of the defendants, including appellants herein, were subsequent and subject to said mortgage held by respondent.