Bessey v. Tuten

PER CURIAM:

This is an appeal from a judgment of foreclosure of a real estate second mortgage for failure of the defendants to make payments as agreed to in a promissory note secured by the second mortgage. The judgment is affirmed with no costs awarded.

The defendants were several months in arrears on a superior first mortgage and also on the second mortgage, which latter is the basis for this litigation and the judgment. The note called for costs, expenses and reasonable attorney’s fees, which fees in this case were set, on sworn supporting testimony, at $1,000.

The appellants make much of the fact that the plaintiff, second mortgagee, had paid the delinquencies on the first mortgage (to protect his own personal interest), claiming he should not be allowed attorney’s fees in protecting such interest but in saving the first mortgagee from the expense and necessity to foreclose its mortgage. Such fees would be payable in any event under the second mortgage note in the event foreclosure were pursued, as was the case here. Appellants’ point on appeal as to this aspect of the case appears to be without merit, which is our conclusion here.

The only other point on appeal is that the trial court erred in allowing the plaintiff to accelerate payment of the balance of the note. The right to accelerate under the facts here was consensual, and the court’s giving permission was to do what plaintiff already legally was permitted to do.

STEWART, J., concurs in the result.