White v. Allatt

Citations

• 87 Cal. 245
• 25 P. 420
• 1890 Cal. LEXIS 1126

Syllabus

<p>Foreclosure of Mortgage — Notes Payable to Trustee of Estate— Pleading — Immaterial Allegation — Support of Judgment. — In an action to foreclose a mortgage given to secure the payment of certain promissory notes, where it appears that the notes set out in the complaint were made payable to the mortgagee as trustee of the estate of a deceased person, an averment, in the complaint, that plaintiff is the owner of the notes and mortgage as trustee of the heirs of said decedent, is immaterial and redundant, and must be disregarded; and a judgment in favor of the mortgagee as trustee of the estate of the decedent is sus- ■ tained by the pleadings.</p> <p>Id. — Parties —Trustee of Express Trust. —Where notes and a mortgage to secure them are taken by a trustee in his own name for the benefit of the estate of a decedent, he becomes the trustee of an express trust, and, as such, may sue to foreclose the mortgage, without joining with him the persons for whose benefit the action is prosecuted.</p> <p>Id. —Attorney’s Fees —Note not Due — Ambiguity — Construction of Pleading. — It appearing that when the action was commenced one of the notes described in the complaint and secured by the mortgage was not yet due, an averment respecting what are reasonable attorney’s fees for the foreclosure of the mortgage is not ambiguous or uncertain, but the amount demanded must be held to relate to the foreclosure as to the notes due, and not to all of the notes set up in the complaint.</p> <p>Id. — Reasonable Attorney’s Feb —Pleading —Discretion of Court. — In an action to foreclose a mortgage, where the mortgage stipulates for a reasonable attorney’s fee in ease of foreclosure, an averment as to what would be a reasonable fee is unnecessary, as such fee is a mere incident to the action, and the amount to be fixed is within the discretion, of the court.</p> <p>Pleading—Demurrer — Ambiguity and Uncertainty.—A demurrer to a complaint, on the ground of ambiguity and uncertainty in the conj