Taylor v. Ellenberger

Action for the foreclosure of three mortgages— two on the same real estate, the other on personal property. Judgment was rendered, generally, for the aggregate of the sums due on the three mortgages, and for the sale of the mortgaged property, “or so much thereof as may be sufficient to raise the amount due to the plaintiffs,” etc. The appeal is from the judgment and from a-n order denying a new trial; but the record contains no statement on the motion. The first of the mortgages sued on was overdue when the suit was brought; the others, it was claimed, had become due, under the provisions of the mortgages, for default in the payment of interest for three months after the same became due. There was included in the judgment two hundred and fifty dollars, allowed as attorney’s fee, and one hundred and sixty-five dollars and fifty-five cents allowed for insurance.

1. The action was brought six days -after the expiration of the three months -allowed for default. But it appears from the allegations -of the complaint and the findings that the mortgagor was adjudged insane September 30, 1898, -and letters of guardianship issued October 7, 1898; and it is claimed by the appellant’s -attorney that the period of seven days elapsing between the date of the order and -the qualification of the guardian should be -added to the period allowed for default, and also the additional period of five days preceding the adjudication—being the time required for notice. But we know of no principle on which this contention can be sustained. The authorities relied on by appellants’ counsel all refer to the jurisdiction of *414 equity to relieve against penalties and forfeitures. Possibly had this jurisdiction been invoked, and -an offer to pay the interest seasonably made, the defense might have been sustained; but as the case stands the authorities cited have no application.

2. The judgment, however, is erroneous in other respects. A general judgment for the aggregate of the amounts due on the three mortgages, and for the sale of both the real and personal property, as though covered by one mortgage, was unauthorized. There was no lien upon the personal property for the amounts due on the first two mortgages, or upon the real property for the amount- due -on the chattel mortgage; and there -should be separate sales of the real and personal property, each for the amounts due upon it. The provision in the judgment for the payment -of the attorney’s fee out of the proceeds of the sale was also erroneous. There was no provision in the first or second mortgage making the attorneys’ fees allowed a lien upon the mortgaged property; and, as the allowance of attorney’s fee is general, it should not have been made -a lien upon any of the property. (Klokke v. Escailler, 124 Cal. 297; Irvine v. Perry, 119 Cal. 352.) Also the amount -allowed for insurance was twenty dollars and five cents in excess of the amount actually paid.

The order denying a new trial should be affirmed. The judgment -should be modified as above indicated, and to that end the cause remanded to the superior court with directions to that court to modify its judgment by adjudicating separately the amounts due on the real estate described in the first two mortgages and those due on the chattel mortgage, and directing the sale of said real estate and personal property separately, each for the amount due on it. In carrying -out this provision the amounts due for attorneys’ fees on the real estate mortgages, ■and the amount due upon the chattel mortgage should be separately determined and the latter only made a lien upon the property mortgaged. The amount allowed for insurance, after deducting the excess of twenty dollars and five cents, should be apportioned, to the second mortgage one hundred and thirty-seven dollars, and to the chattel mortgage ten dollars, allowing interest at legal rates, on -the former from October 14, 1898, and on the latter from May 10, 1898; and as so modified the *415 judgment should stand, affirmed. The costs of this appeal are to he borne by the respondent.

Haynes, C., and Gray, C., concurred.

For the reasons given in the foregoing opinion the order denying a new trial is affirmed, and the cause is remanded with directions to modify the judgment in accordance with this opinion, and as so modified the judgment stands affirmed.

Henshaw, J., McFarland, J., Temple, J.

Hearing in Bank denied.