The record-union., 1891-02-08

Appear from superior Court, Los An
geles County,. w. T9wner, Judge.
For respondent, Ray sBillingsley.
DEPARTMENT. two.
r. E. HEwETrr, Respondent,
q. l.. DEAN AND CoRNELIA mo. i4,olI
Z. DEAN, Appellants.
This is an action to foreclose a mortgage
on real property, The note, to secure
which the mortgage was given, was for
$500, dated October %, 1887, and paya-
BILE three years after date with interest at
the rate OF ~ per eents.ger annum, pay
able annually, and III not so paid to be
compounded annually, and bear the same
rate OF interest as the principal The note
then contained the following provisions:
And should the interest not be paid
when due, then the whole sum ofprincipal
and interest shall become Immediately
due and payable at the option of the
| holder of this note. Should suit be COM
menced to enforce the payment of this
note, we agree to pay an additional sum
| OF per cent. on principal as attorneys
fees in such suit" The MORTGAGE also
provided: "And the mortgages promise
to pay said note according to the terms
and conditions thereof, and in case of de-
iault IN payment OF the same, or of any
installment of the interest thereon when
due, the mortgagor may foreclose this
| mortgage, and may include in such fore
closure reasonable counsel fee, to be
fixed by the court"
The action was commenced on the 18th
day of January, 1889, and the complaint
alleged that no part of the principal or
interest mentioned in the note had been
paid, and that because of said interest
not having been paid when due, and
upon the provision with reference thereto
contained in said note, the plaintiff elects
to consider and declare the whole sum of
principal and interest of said note now
due and payable"
The prayer was that the plaintiff have
Judgment for the sum named in the note
| as principal and interest thereon as the
note specified, compounded annually,
and for per cent. on the said principal
sum of s., 800, for attorneys fees, as pro-
plded in said promissory note, and being
such reasonable counsel fee, as provided
in said mortgage, and for costs of suit"
and also that the usual decree of fore
closure be entered.
Subsequently the plaintiff filed an
amendment to his complaint, alleging
that on or about the 10Th of November.
1883, he demanded personally of the de-
fendant, G. L. Dean, the payment of the
whole sum of principal and interest.
And on the 9TH of December, 1889, he
filed a supplemental complaint, alleging
that, ON the 10Th OF October, of that Year,
another installment of interest fell due,
and that no payment whatever of interest
or principal had been made
The defendants demurred generally
and specially to the complaint as amended,
and the demurrer was overruled. They
then answered and by their answer de-
MED that plaintiff made any demand for
the payment of the principal of the note
prior to the commencement of the action,
and alleged that no notice of plaintiffs
election or option to consider the princi-
pal and interest of the note due was ever
given by him to them, or either of them,
prior to the commencement of the action.
They also set up a written memorandum,
signed by the plaintiff, agreeing to credit
the defendants with q per cent. of the 124
per cent. stipulated interest, provided the
defendants should present receipts show
ing the payment of all taxes against the
property covered by the mortgage ON or
before the 18th day of December of each
year, and alleged that the memorandum
was made at the time the note and mort
gage were executed and was part of the
transaction, and that they had paid all
State, county and municipal taxes as
sessed against the property, and were
therefore entitled to credit of the q per
cent. per,annum on the interest.
The case was tried and the court found
that the plaintiff signed and delivered to
the defendant, g. L. Dean, the memoran-
dunn, set forth IN the answer, at the time
the note and mortgage We're executed;
that an agreement was thereby made be-
tween the plaintiff and defendants that
the rate of interest on the note should be
ten per cent. per annum only, provided
the defendants should pay all taxes levied
against the mortgaged property subse
quently; that the defendants paid the
State. county and municipal taxes on the
property for the fiscal year 1852, and
the municipal taxes for the fiscal year
1SSe-90, but had not paid the State and