Conservative Savings & Loan Ass'n v. Mancuso

Day, J. This is a suit to foreclose a real estate mortgage. The defendants appeal from a decree of foreclosure entered March 3, 1936. There are no assignments of error, but it would appear from the brief which sets out a portion of the motion for new trial that the appellants’ complaint against the decree is that it is- not sustained by sufficient evidence. The evidence discloses that this was originally a mortgage for $12,000, covering two pieces of property, executed in 1923, and that it was reduced to $6,000 in 1933, when one parcel of real estate was released from the mortgage. The mortgage provided for monthly payments of $60 a month. The petition alleges that there has been no payment since January 15, 1934, and that the plaintiff had been compelled to pay taxes prior to the commencement of this action on November 23, 1935, in the sum of $360.87. The evidence in the record is conclusive that there were no payments by defendants either on the mortgage debt or taxes from January 15, 1934, to the date of the trial March 3, 1936. The decree found that there was due the plaintiff the sum of [380] $7,058.92. The evidence is abundantly sufficient to support the decree of foreclosure. It is also claimed by the appellants that an action was brought to recover on the note in January, 1934. At that time the defendants had only paid $30 a month for a period of six months, and the payments were delinquent in the sum of $180, which was delinquency equivalent to three months. The contract provided that, upon a failure to make the monthly payments for three months, the mortgagee could declare the whole amount due and foreclose the mortgage. That case was dismissed by the court without prejudice on June 27, 1935. It is at least suggested in the briefs that this was an adjudication and binding upon the parties, and that this foreclosure was prematurely brought because the dismissal was an adjudication that the loan was not in default in January, 1934. This foreclosure was brought almost two years later and alleges other and different defaults from the one upon which the action at law upon the note was brought. So even if this question is raised by the record (and we think it is not) it is not a bar to this action. After careful examination of the entire record, it appears that the judgment of the district court is regular and proper. Affirmed.