
    [No. 19550.
    Department One.
    April 19, 1895.]
    PAUL BOOB et al., Respondents, v. LAVINIA HALL, Appellant.
    Appeal by Mortgagor—Servios op Notice—Defaulting Codefbndants. In an action to foreclose a mortgage, where an averment in the complaint, that the interest of othei defendants than the mortgagor in the mortgaged property is subject to the lien of the plaintiff, is admitted by their default, and the judgment merely forecloses their interest in the property, upon an appeal taken by the mortgagor alone, it is sufficient to serve the notice of appeal upon the plaintiffs, and it need not be. served upon the defaulting codefendants, who could not be affected a reversal or modification of the judgment.
    Id.—Description of Mortgaged Property — Certainty — Sw Water Stook—Capital Stock of Water Company—Ceív. . Where the mortgage, in addition to the land mortgaged, di _ ¿bed certain shares of water stock, and the complaint described the same in the same terms in which it had been described in the mortgage, the mortgagor upon appeal cannot object to uncertainty in the description; and where it does not appear that a certificate had been issued for shares' of the stock of a water company, the description of it as so many t.has os of its capital stock, in the mortgage and in the complaint, is sufficir n¡ to identify the property mortgaged, as well as for the purpose of ?, ¡o under the judgment, and such sale will transfer any title v/?” I no mortgagor might have to shares of the capital stook for which no r; -<- tifieate had been issued.
    Id.—Allowance of Counsel Pees—Absence of Agreement.—In the absence of an agreement for the payment of counsel fees in a mortgage the court is not authorized to include counsel fees as a part of the judgment; and where the complaint contains no averment of any agreement on the part of the mortgagor to pay a counsel fee, and the copy of the mortgage annexed to the complaint does not contain any such stipulation, no counsel fees can be allowed, although prayed for.
    Appeal from a judgment of the Superior Court of San Bernardino county
    The facts are stated in the opinion of the court.
    
      Goodcell & Leonard, for Appellant.
    
      George B. Cole, for Respondents.
   Harrison, J.

Action to foreclose a mortgage executed by the defendant Lavinia Hall. The other defendants were made parties to the action under the allegation that they have or claim some interest in the mortgaged premises, subject to the lien of the plaintiffs. The defendant Hall demurred to the complaint, and upon the overruling of her demurrer she failed to answer, and her default was thereupon entered. The defendants Mansfield made no appearance, and their default therefor was entered. Judgment was rendered in favor of the plaintiffs, directing a sale of the mortgaged property, foreclosing all the defendants of any right therein, and providing that, if the proceeds of the sale of the mortgaged property was insufficient to pay the amount found due to the plaintiffs, judgment for the deficiency should be docketed against the defendant Lavinia Hall. The defendant Lavinia Hall alone has appealed.

1. The notice of appeal was served upon the plaintiffs alone, and the respondents have moved to dismiss the appeal for failure to serve the notice upon her codefendants. As the averment in the complaint that the interest of the other defendants in the mortgaged property is subject to the lien of the plaintiff was admitted by their default, and as the judgment merely forecloses their interest in the property, it is evident that they could not be affected by a reversal of the judgment, or by a modification of any of the terms thereof which affect the appellant and the respondents.

2. The demurrer to the complaint was properly overruled. The complaint described the mortgaged property, other than the land, in the same terms in which it had been described in the mortgage, viz: “Together with one share of water in the south fork ditch of the Santa Ana river, and ten shares of the capital stock of the Lugonia Water Company, a corporation.”

The appellant ought not to object to an uncertainty in description which she has herself made. It does not appear that the corporation had issued to the appellant a'Certificate for the shares of its capital stock; and, if not, the description in the complaint, as well as in the mortgage, was sufficient to identify the property which the appellant intended to mortgage, as well as for the purpose of a sale under the judgment. Such a description in an instrument of sale would transfer any title the vendor might have to shares af the capital stock in a corporation for which no certificate had been issued.

3. In the judgment rendered by the court there was allowed to the plaintiffs the sum of four hundred dollars as counsel fees in foreclosing the mortgage. The complaint contains no averment of any agreement on the part of the mortgagor to pay a counsel fee, nor does the copy of the mortgage annexed to the complaint contain any such stipulation. In the absence of an agreement therefor the court was not authorized to include counsel fees as a part of the judgment. (Sichel v. Carrillo, 42 Cal. 493; Clemens v. Luce, 101 Cal. 432.) Neither the prayer in the complaint for its allowance nor the averment of the amount which would be reasonable can supply the necessity of a direct averment that an attorney’s fee had been agreed to be paid by the mortgagor.

The motion to dismiss the appeal is denied, and the cause is remanded to the superior court, with directions to modify the judgment by excluding therefrom the amount included therein for attorneys’ fees; and, when so modified, the judgment will stand affirmed.

Van Fleet, J., and Garoutte, J., concurred.  