Fraser

The complaint was in the ordinary form, setting forth the making by defendants of a promissory note, the execution of a mortgage to secure the same, the plaintiff’s ownership of the note and mortgage, and the non-payment of a part of the principal, and the interest due. Copies of the note and mortgage were incorporated in the complaint. The mortgage contains a statement that the amount of the promissory note secured by it ($15,200) is the balance due the mortgagee on the purchase price of the mortgaged property.

To this complaint the defendants demurred, and they now assign the overruling of their demurrer as error. Their contention is that the action is in. effect one for the specific performance of an agreement for the purchase and sale of real estate, and that it is incumbent on plaintiff in such action to allege and prove that the contract sought to be enforced is just and reasonable as to the defendants, and that the consideration, is adequate. (Civ. Code, sec. 3391.) That allegations showing the existence of these conditions are necessary to the sufficiency of a complaint for specific performance is not to be questioned. (See Herzog v. A. T. & S. F. R. R. Co., 153 Cal. 496…