Hewett v. Dean

Citations

• 3 Cal. Unrep. 385
• 25 P. 753
• 1891 Cal. LEXIS 1282

Syllabus

<p>Promissory Note—Default in Interest—Demand.—Where a note secured by mortgage declares that, on failure to pay the annual interest when due, the whole sum of principal and interest shall become immediately due and payable at the option of the holder, demand after default is not necessary to support an action for the entire sum. Bringing the suit to foreclose is sufficient demand.1</p> <p>Promissory Note—Default in Interest.—A Delay of Three Months after default in the interest is not a waiver of the right to exercise the option, when the delay is caused by reason of defendant’s request to be allowed a few days additional in which to pay the interest.</p> <p>Mortgage—Payment of Taxes.—A Mortgage, Given to Secure a contemporaneous note bearing twelve and one-half per cent interest, provided that “all payments made by the mortgagee for taxes and assessments on said premises, excepting taxes on the interest of the mortgagee therein,” might be included in the decree of foreclosure. The mortgagee signed a separate agreement to credit the mortgagor with two and one-half per cent interest on the note if the latter presented receipts showing that he had paid “all taxes against the property covered by the mortgage.” Held, that' this was not an agreement by the mortgagor to pay taxes on the money loaned, nor could parol evidence be given that such was the intention, for the purpose of avoiding the entire interest, under constitution, article 13, section 5, declaring any contract by which a debtor agrees to pay taxes on the money loaned shall be void as to any interest specified therein.</p> <p>Mortgage—Attorney Fees.—The Note Provided that, if suit was commenced to enforce its payment, the maker would pay five per cent on the principal as an attorney’s fee, and the mortgage provided for the payment of “a reasonable counsel fee” upon foreclosure. The complaint alleged “that the sum of $300 is a reasonable attorney’s fee or counsel fee for the foreclosure of said mortgage.” He