Krueger

Elmer and Lucile Smith have appealed from an order denying them the attorney’s fees they incurred from litigation resulting from defendants’ attempt to enforce the acceleration clause in a deed of trust on their home. The sole issue is whether the adverse order constituted an abuse of discretion. We find it did and we reverse.

Facts

Neither party disputes the following pertinent facts. Plaintiffs purchased their home from defendants in the fall of 1981. To cover the cost of this purchase, plaintiffs executed a promissory note for $31,500, secured by a deed of trust.

The deed of trust contained an acceleration clause (due on sale) which read: “If the trustor sells, conveys, or alienates the said property, or any part thereof, or any interest therein, any indebtedness or obligation secured hereby, irrespective of the maturity date expressed therein, at the option of the holder hereof, and without demand or notice, shall immediately become due and payable.”

The same document also incorporated a unilateral attorney’s fees clause from a fictitious deed of trust which read: “To protect the security of this deed of trust, trustor agrees ... to pay all costs and expenses,…