Sec. 582. Defenses to foreclosure proceedings.Under the Code of Washington totally inconsistent defenses are not allowable. Seattle Nat. Bank v. Carter, 13 Wash. St. 281 (43 Pac. Rep. 331). It is no defense to a mortgage executed by a husband and wife to secure money loaned to them jointly for the wife to show that the money thus acquired was used by the husband alone in derogation of the right of the wife, the mortgagees having no connection with, or knowing of, such use. American Freehold L. Mortg. Co. v. Thornton, 108 Ala. 258 (19 So. Rep. 529). It is no defense for the mortgagor to allege the making of, and his willingness to perform an agreement between him and the mortgagee by which the latter was to receive a portion of the mortgaged premises in payment of the debt, where it appears that the premises are subject to other incumbrances. Christmas v Haywood, 119 N. C. 130 (25 S. E. Rep. 861). It is no defense to an action to foreclose a mortgage to show that the mortgagee took an assignment of an insurance policy on a building standing on the mortgaged premises, as further security for the debt, which building was destroyed before the beginning of the action to foreclose, and that he has failed to collect the insurance money due on account of such destruction. Savings Bank v. Middlekauff, 113 Cal. 463 (45 Pac. Rep. 840). In an action by an assignee of a nonnegotiable note to foreclose a mortgage given to secure it, the mortgagor may show failure of consideration as a defence. Walker v.

Thompson, 108 Mich. 686 (66 N. W. Rep. 584). Under a general denial, in an action to foreclose a purchase-money mortgage, evidence of a shortage in the quantity of land conveyed is inadmissible. Tron v. Yohn, 145 Ind. 272 (43 N. E. Rep. 437). Defendants having mechanics' liens on the property may set them up by answer, without a cross bill. Blatchford v. Blanchard, 160 Ill. 115 (43 N. E. Rep. 794). An answer alleging that "all the notes and items charged and mentioned in the complaint" were fully paid before the commencement of the action is sufficient. Manley v. Felty, 146 Ind. 194 (45 N. E. Rep. 74). Where an uneducated person wholly ignorant of his rights and relying on the false and fraudulent representations of his attorney, as to the value of the property involved in contemplated litigation and the

opposition which would have to be overcome to secure his rights, executes to such attorney in payment for services to be rendered, a note for an exorbitant amount and secures the same by mortgage upon real estate, a court of equity will not permit their enforcement beyond the fair value of the services rendered. Manley v. Felty, 146 Ind. 194 (45 N. E. Rep. 74). Particular facts held sufficient to sustain the plea of payment. Perez v. Bank of Key West, 36 Fla. 467 (18 So. Rep. 590). Particular case in which it was held not error for a court to refuse leave to file an amended answer. Tulare Bldg. & L. Ass'n v. Coleman, (44 Pac. Rep. 793).

Cal.

Sec. 583. Usury as a defense to foreclosure proceedings. Usury is a personal defense to the original debtor, and cannot be asserted by one who has assumed and agreed to pay the mortgage debt. Dickerson v. Bankers' Loan & Inv. Co., 93 Va. 498 (25 S. E. Rep. 548). Nor can a junior mortgagee, in case of insolvency of the debtor, plead usury against a prior incumbrance. Stickney v. Moore, 108 Ala. 590 (19 So. Rep. 76). One setting up usury as a defense and who does not ask any affirmative relief is not subject to the equity rule requiring a return of the principal sum loaned as a condition of relief against a usurious contract. Maynard v. Hall, 92 Wis. 565 (66 N. W. Rep. 715). The fact that a mortgage provides for the payment of a usurious rate of interest upon money advanced by the mortgagee to pay taxes or insurance does not affect the right to recover upon the principal obligation. Hughes Bros. Mfg. Co. v. Conyers, 97 Tenn. 274 (36 S. W. Rep. 1093). The price of property sold in good faith may be included in the same security with money loaned, and the fact that the price was large, and more than the property could have been sold for, does not necessarily condemn the transaction as usurious. Saxe v. Womack, 64 Minn. 162 (66 N. W. Rep. 269). N. Dak. Laws 1890, ch. 184, § 4, construed—what constitutes usury-failure to state rate of interest separately. Folsom v. Kilbourne, 4 N. Dak. 402 (67 N. W. Rep. 291). Particular allegations held sufficient to raise a defense of usury. Harrell v. Parrott, 45 S. C. 611 (23 S. E. Rep. 946). As to the defense of usury, see May v. Folsom, 118 Ala. 198 (20 So. Rep. 984).

Sec. 584. Statute of limitations. A security given for a debt barred by the statute of limitations may be enforced. Taylor v. Hunt, 118 N. C. 168 (24 S. E. Rep. 359). An action to foreclose a mortgage is not barred as long as the debt which it secures is enforcible, Jenks v. Shaw, 99 Ia. 604 (68 N. W. Rep. 900; 61 Am. St. Rep. 256); and a mortgage may be foreclosed although an action on the debt is barred. Hedrick v. Byerly, 119 N. C. 420 (25 S. E. Rep. 1020); Irvino v. Shrum, 97 Tenn. 259 (36 S. W. Rep. 1089). A mortgagor who has parted with his title to the mortgaged property cannot revive the mortgage debt after it has become barred by the statute of limitations, so as to continue the lien of the mortgage in force as against one who purchased the land when the mortgage appeared to be barred, and without notice of the attempted revivor, Cook v. Prindle, 97 Ia. 464 (66 N. W. Rep. 781; 59 Am. St. Rep. 424); reversing Cook v. Prindle, 97 Ia. 464 (63 N. W. Rep. 187; see Vol. IV, § 714). Ill. Act April 4, 1872, § 11, fixing the limitation upon actions to foreclose mortgages is prospective only. Robertson v. Wheeler, 162 Ill. 566 (44 N. E. Rep. 870). Gen. Laws 1887, ch. 69, changing the time within which an action to foreclose may be brought from 10 years to 15 years, was retrospective and applied to all cases where the prior statute had not fully run before the amendatory act took effect (September 2, 1887). Bradley v. Norris, 63 Minn. 156 (65 N. W. Rep. 357); Backus v. Burke, 63 Minn. 272 (65 N. W. Rep. 459).

Sec. 585. Judgment in foreclosure proceedingsConclusiveness-Collateral attack. A judgment of fore closure is conclusive as to all matters involving the validity of the mortgage. Haseltine v. Gilleland, 2 Kan. App. 45€ (43 Pac. Rep. 88). Where the mortgagee of a tract of land in favor of which exists an easement for a ditch across an adjoining tract, when made a party to a suit to foreclose a mortgage on the latter tract, disclaims any interest in such tract and judgment is rendered accordingly, his lien on the easement is extinguished. Dixon v. Schermeier, 110 Cal. 582 (42 Pac. Rep. 1091). Failure to comply with the statute (S. & B. Ann. Stat., § 3187) requiring the filing of a notice of the pendency of the action" within twenty day before

judgment, is not such an irregularity as to invalidate a judgment of foreclosure on collateral attack. Huntington v. Meyer, 92 Wis. 557 (66 N. W. Rep. 500). The notice required by this statute does not become operative until the complaint is filed, and a judgment of foreclosure rendered on the same day the complaint is filed, though more than twenty days after the filing of the notice, is premature. Gile v. Colby, 92 Wis.

619 (66 N. W. Rep. 802).

*

Sec. 586. Personal judgment in foreclosure proceedings-Damages for removal of buildings. A personal judgment cannot be rendered for a deficiency unless the defendant is personally liable for the debt, and the bill asks for such a decree. Welbon v. Welbon, 109 Mich. 356 (67 N. W. Rep. 338); Minchrod v. Ullmann, 163 Ill. 25 (44 N.E. Rep. 864); Bank of California v. Dyer, 14 Wash. St. 279 (44 Pac. Rep. 534). A personal deficiency judgment cannot be rendered against a guarantor of a mortgage debt in an action to foreclose the mortgage, and this rule is not changed by a statute (Wis. Rev. Stat., § 3156) providing that in all foreclosure actions the plaintiff may unite with his claim for foreclosure of the mortgage "a demand for a judgment for any deficiency which may remain due to the plaintiff after sale of the mortgaged premises against every party who may be personally liable for the debt secured by the mortgage * if upon the same contract which the mortgage is given to secure." Cottrell v. New London Furniture Co., 94 Wis. 176 (68 N. W. Rep. 874). Where a mortgagee takes as collateral security an assignment of mortgage notes executed to his mortgagor, he may, when the mortgagor defaults in the payment of the debt due him, foreclose the principal mortgage and take a personal judgment against the mortgagor for any deficiency, which judgment he may satisfy by a foreclosure of the mortgage given to secure the notes taken as collateral security. McArthur v. Magee, 114 Cal. 126 (45 Pac. Rep. 1068). The personal judgment for a deficiency due on a mortgage after a sale of the premises cannot be adjudged a lien on other lands, prior to other judgment liens, unless the insolvency of the defendant is shown. Howard v. Devol, 15 Wash. 270 (46 Pac. Rep. 235). When after foreclosure of

his mortgage there remains a deficiency due the mortgagee he may maintain an action for damages against one who has removed buildings from the premises which were subject to the lien of the mortgage, and recover the difference between the value of the land with and without the buildings to the extent necessary to satisfy his mortgage debt. Heath v. Haile, 45 S. C. 642 (24 S. E. Rep. 300). Citing, Lavenson v. Soap Co., 80 Cal. 245 (22 Pac. Rep. 184; 13 Am. St. Rep 147); Van Pelt v. McGraw, 4 N. Y. 110.

Sec. 587. Allowance of attorney's fees in foreclosure proceedings. A provision in a mortgage for the allowance of attorney's fees in case it becomes necessary to employ an attorney to collect the debt, or in case of foreclosure of the mortgage in a particular manner, may be enforced. Wells v. American Mortg. Co., 109 Ala. 430 (20 So. Rep. 136). Where an overdue mortgage provides for attorney's commissions in case of a suit on the same, a previous demand of payment is not necessary to their recovery. Walter v. Dickson, 175 Pa. 204 (34 Atl. Rep. 646). Attorney's fees are in the nature of a penalty and their enforcement is within the court's control, in the exercise of its powers. Wilson v. Ott, 173 Pa. 253 (34 Atl. Rep. 23; 51 Am. St. Rep. 767). Where the mortgage provides for the recovery of a certain per cent. of the amount due as attorney's fees it is the duty of the court to make the allowance accordingly, Haywood v. Miller, 14 Wash. 660 (45 Pac. Rep. 307); and where the note provides, for an attorney's fee of 10 per cent. the excessiveness of such a fee can not be questioned. Cooper v. Bank of Indian Territory. 4 Okla. 632 (46 Pac. Rep. 475). Where a note and mortgage specify that a given sum is to be included as attorney's fees in the decree in case of foreclosure, the introduction of these instruments in evidence in such an action is sufficient to authorize a decree for such fees. Ames v. Bigelow, 15 Wash. 532 (46 Pac. Rep. 1046). Where the mortgagor by his obligations agrees to pay counsel fees and the complaint for foreclosure is signed by one as attorney for the plaintiff, a judgment for reasonable attorney's fees will not be disturbed because the plaintiff did not allege and prove the employment of the attorney. Avery v. Maude, 112 Cal. 565 (44 Pac. Rep.