Citations
- 126 Cal. 156
Full opinion text
GRAY, C.
—Defendants appeal from a judgment decreeing the foreclosure of a mortgage and from an order denying a new trial.
1. The mortgage in this case provided that, on default in the payment of any instalment of interest as agreed, the whole sum of principal and interest should become due at the option of the mortgagee. The note which the mortgage secured was dated November 29, 1895, and the principal thereof, according to its terms, was payable "on or before five years after date,” and interest at ten per cent per annum was payable annually. This action was commenced on December 28, 1896. It was alleged in the complaint that no part of the interest had been paid, and that the principal and interest mentioned in said note and mortgage were due and unpaid from defendants to plaintiff. The commenóement of the action was notice of the exercise of the option to treat the whole amount of the note as due on default in the payment of the first annual instalment of interest, and no previous notice or demand was necessary. (Hewitt v. Dean, 91 Cal. 5.) The complaint, therefore, was not defective in the respect claimed by appellant, as it appeared therefrom that the mortgage debt was due.
2. The findings fully dispose of the defense set out in the answer that the note and mortgage were given without consideration. The facts as the court found them to be are recited, and it is in substance stated in the findings that the note and mortgage sued on herein were given in compromise of a pending action based on a note and mortgage of defendants to one W. W. Hall and assigned to D. W. and J. J. Scofield, and that the note .and mortgage upon which the present action is based were given for the “sum of fourteen hundred and ninety-four dollars and sixty cents, being the amount due said D. W. Scofield on account of the payment made by him to said W. W. Hall of his said mortgage, with interest thereon and costs of plaintiffs in said action.”
3. The third and last contention of appellants is that “there was no consideration moving between appellants and D. W. Scofield to support the note and mortgage” on which this suit is brought. The plaintiff sues as the assignee of D. W. Scofield, who is a son of appellants. O. B. and J. J. Scofield, two other sons of .appellants, some three or four years before the execution of this mortgage to D. W. Scofield, entered into an oral contract with their father and mother, whereby they leased the premises described in said mortgage for five years, agreeing, among other things, to pay off a mortgage for about thirteen- hundred dollars which appellants had previously made upon a portion of said lands to one W. W. Hall. By the terms of this oral agreement appellants were to deed to their sons,