San Gabriel Valley Bank v. Lake View Town Co.

Citations

• 7 Cal. Unrep. 266
• 86 P. 727
• 1906 Cal. LEXIS 383

Syllabus

<p>Mortgage—Construing With Note.—Where a note is secured by a mortgage, the note and mortgage are to be construed together as evidencing the intent and purpose of the parties.</p> <p>Mortgage—Maturity of Debt.—A note and mortgage securing the same provided that the principal should be paid in five years, that the interest was to be paid semi-annually, and if not paid when due, it should be added to the principal and bear the like interest; but, if default was made in payment of interest for thirty days, then the “whole sum, principal, here promised, shall, at the option of the holder of the note, become immediately due, payable, and collectible.” Held, that, where an action to foreclose was commenced thirty days, after default in payment of interest, the mortgage was subject to foreclosure at plaintiff’s election for the whole amount thereof.</p> <p>Mortgage—Notice of Election to Declare Due.—Where a mortgage provided that on default for thirty days in interest, the whole sum, principal and interest, should become payable at the option of the holder, the filing of a complaint, after thirty days’ default in interest, seeking to recover the entire debt, constituted a sufficient notice of election by the mortgagee to claim the whole amount as due.</p> <p>Mortgage—Foreclosure.—An Objection That a Complaint in a Suit to foreclose a mortgage was insufficient for want of facts in that no definite or separate amount was alleged to be due could be taken advantage of by special demurrer, and was waived by defendant’s failure to so object thereto.</p> <p>Mortgage—Foreclosure—Res Judicata—Conclusiveness.—Where, in a suit to foreclose a mortgage, it was alleged “on information and belief” that M. had an interest in the said “premises or property mentioned” in said mortgage, but that the same was subsequent and subject to the mortgage interest, and M. made default, such default was tantamount to an admission that M.’s interest was subsequent to plaintiff’s, so that after judgmen