Mason v. Luce

Citations

• 116 Cal. 232
• 48 P. 72
• 1897 Cal. LEXIS 530

Syllabus

<p>Foreclosure of Mortgage — Statute of Limitations — Maturity of Note—Stipulation in Mortgage—Default in Interest—Penalty —Waiver.—The statute of limitations does not begin to run against the foreclosure of a mortgage until the maturity of the note secured thereby, notwithstanding a stipulation in the mortgage that if default be made in payment of the interest, or any part thereof, according to the tenor of the note, then the whole principal and interest shall become immediately due, and the mortgagee may proceed to foreclose and sell the mortgaged premises in the manner provided bylaw, such stipulation being in the nature of a penalty inserted for the benefit of the creditor, who waives all benefits from the default by accepting payment of interest after the default.</p> <p>Id.—Stipulation in Note fob Attorney’s Fees—Personal Judgment.— A stipulation in a note secured by mortgage for the payment of five per cent of the amount due and unpaid, as attorney’s fees, renders the note non-negotiable, but is not invalid or void; and, where the mortgage only secures the principal and interest of the note, it is proper, in an action to foreclose the mortgage, to render a personal judgment against the mortgagor pursuant to the terms of the note for the attorney’s fees therein stipulated.</p>