Brooks

Action to foreclose a mortgage, in which defendant suffered default. The mortgage provided that, in the event of foreclosure, the mortgagee might retain from the proceeds of sale the costs and charges of suit, “ including counsel fees at the rate of -per cent.” The prayer aslced for the principal and interest due, “ and for costs of suit,” the sale of the mortgaged premises and application of proceeds in payment of the amount due, and for general relief; but it did not in terms ask an award of counsel fees. The court in its decree, however, made plaintiff an allowance for counsel fees in the action, and the only question involved in the appeal is whether the allowance of that item was proper under the circumstances.

Appellant contends that it was not; that the allowance was in excess of the relief demanded in the complaint, and that this was in violation of section 580 of *220 the Code of Civil Procedure, which provides: “ The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint.”

Respondent contends that the prayer was sufficient to entitle the court to make such allowance; that in an action of foreclosure it…