Yoakam v. White

Citations

• 97 Cal. 286
• 32 P. 238
• 1893 Cal. LEXIS 533

Syllabus

<p>Mortgage — Foreclosure for Unpaid Interest.—Where, by the terms of a mortgage, the mortgagor promised to pay the mortgage note “according to the terms and conditions thereof,” and that “in default of the payment of note by its terms,” the mortgagees or their assigns might foreclose, and the terms of the note were, that the interest should he payable annually, and the principal at the end of five years, the owners of the mortgage are entitled to foreclose it upon a default in the payment of the interest for the amount of interest due, and need not wait •until a default in the payment of the whole note, principal and interest.</p> <p>Id. —Foreclosure for Debt not Due — Default — Province of Court. — In such case, where the mortgagees alleged, in the complaint to foreclose the mortgage, that the mortgaged property could not he sold in portions, without injury to the parties, and prayed for a decree of foreclosure for the entire debt evidenced by the note, and the mortgagor failed to answer the complaint, whereupon his default was entered, the trial court must determine upon the hearing whether, in addition to the foreclosure for the interest due, to which plaintiffs are entitled, they are entitled to all the relief asked, under section 728 of the Code of Civil Procedure.</p>