Van Loo v. Van Aken

Action to foreclose a mortgage. A general demurrer to the complaint for want of facts was sustained by the superior court, and, plaintiff being unable to amend, judgment was entered for the defendants, from which the plaintiff appeals. The sole question to be determined is whether the complaint states a cause of action.

*270 It is alleged that on the 9th of December, 1890, the defendants executed and delivered to the plaintiff their promissory note in the following words and figures:

That at the same time the defendants executed a mortgage to secure the payment of said note according to its terms; that on March 31,1893, the date of the commencement of the action, no part of the principal or interest of the note had been paid; that the mortgaged premises cannot be sold in portions without injury; that the defendants have violated their covenant to insure, and are insolvent, etc.

It is claimed by appellant that on this state of facts— the sum of eight hundred dollars being past due for interest — he had a right to commence his action to foreclose before the maturity of the note, notwithstanding the absence of any stipulation in the note or mortgage giving him that right.

The…