Churchill v. Title Insurance & Trust Co.

BARNARD, P. J. This is an action by a bondholder to foreclose a number of street improvement bonds issued on March 12, 1931, as payment for work done on certain streets or roads in the county of Orange.

Among other things, the complaint alleges that the bonds were issued by virtue of the County Improvement Act of 1921 (Stats. 1921, p. 1658) and all acts supplementary thereto, incorporated therein by reference, and amendatory thereof, including particularly the Street Improvement Act of 1911, as then existing. It is then alleged that the bonds were in certain named amounts with interest at 6 per cent, payable at the time and in the manner specified therein; that the bonds represent the cost of certain street work as more fully described in a certain assessment and diagram which is referred to; that the bonds are a lien upon described real [417]property belonging to the appellant; that the bonds provide for interest on certain named dates and annually thereafter ; that the bonds were in default in interest due on January 2, 1932; that no interest payments coming due after that date have been paid; that the bonds are further in default in that the principal payments due on January 2, 1932, have not been paid and no principal payments subsequently coming due under the terms of the bonds have been paid, although demand has been made; and that copies of the respective bonds are attached to the complaint. The copies of the bonds thus set forth do not include copies of any of the coupons representing the serial payments of either principal or interest, but each bond is substantially in the form suggested in section 63 of the Street Improvement Act of 1911. (Deering’s Gen. Laws, 1931, Act 8199.) These bonds, as thus shown, fully disclose the due date and amount of each payment of principal and interest, and state that the respective payments are to be made upon presentation of coupons which are attached thereto. After setting forth what payments on these bonds are in default the complaint proceeds to allege that the holder has elected to and does declare the whole amount to be due and payable, that certain penalties have accrued, and that written notice and demand had been served on the appellant more than thirty days before the commencement of the action with notice of the delinquency and that foreclosure suit would be brought unless the appropriate amounts were paid within thirty days.

The complaint was personally served on the appellant and no appearance having been made, its default was entered. After a hearing a decree of foreclosure and order óf sale were entered, followed by a judgment. This appeal, which followed, is presented on the judgment roll alone and the only question raised is whether the complaint states facts sufficient to constitute a cause of action. The appellant attacks the complaint in one respect only, contending that the failure to set forth copies of the coupons which were attached to the bonds renders the complaint insufficient as not complying with the provisions of section 76a of the Street Improvement Act of 1911, as then existing.