The record-union., 1891-02-08

other lien, shall, as to any interest speci-
ned therein, and as to such tax or assess
ment, be null and void.''
The promise in the note to pay interest
at Ia per cent. was absolute. And the
mortgage provided that the mortgage
might include in a decree of foreclosure
all payments made by the mortgage
Tor taxes and assessments on said prem
lSes, excepting taxes on the interest ON
the mortgagee therein The memoran-
dum was not signed by the defendants,
and they did not thereby obligate them
selves to pay any taxes on the land or
mortgage. 1t simply provided that ii
they should present receipts showing the
payment of all taxes against the property,
then the interest on their note was to be
lO per cent. per annum only. They might
or might not pay all or any of the taxes
at their pleasure, and the evidence
showed that the plaintiff in fact paid all
taxes assessed against his mortgage at
the time they became due. (See Marye VS..
Hart, IS Cal. 29I.
3. 1t is commended that the court erred
in finding that $500 was reasonable at
torney's fee, and in allowing the plaintiff
that amount. This is rested upon the
fact that there was no allegation in the
complaint that the plaintiff had paid that
sum, or incurred any liability to pay it,
and hence it is claimed that the finding
lied. But the complaint alleged ''that
the sum of $500 is a reasonable attorneys
fee or counsel fee, for the foreclosure of
said mortgage" and, if any averment as
TO the fee was necessary, this certainly
was sufficient. (See Carriere VS.. Min
turn, Cal. 435; Monroe VS.. Foil, 70 Cal.
DOS; Rapp VS.. Spring Valley Gold Co. "A
421.)
The cases cited and relied upon by APP
pellants are not in point. In Patterson
VS.. Bonner, 4S Cal. 1863, the action was
commenced and prosecuted by the plain
till personality; and in Bank of Woodland
VS.. Treadwell, 90 Cal. 379, the attorney
for plaintiff was employed by it to per-
FORM Its legal business under regular
monthly salary, and it had neither paid
nor became liable to pay to him anything
as counsel fees. 1t was held in each case
that, under the circumstances shown,
counsel fees could not be allowed; the
court, in the latter case, saying: 1.-THE object
OF the law allowing counsel fees is not to
afford an opportunity, under cover of the
name, for speculation on the part of the
creditor. but to reimburse him in pro-
per amount, for sum which he pays, or
becomes liable to pay, or to relieve him
OF the burden OF paying counsel fees"
no such circumstances appear here.
But even If the plaintiff was entitled to
a counsel fee, it is strenuously urged that
the amountallowed was too large; that the
court could properly allow only SIPS.
This position, we think, should be sus-
tanned. The note provided for an attor-
ney's Zee OF five per cent. on the principal
In case an action should be commenced to
enforce It's payment. The mortgage pro-
weed for reasonable attorneys fee in
case of foreclosure. These papers should
oe read together as constituting one con-
tract In this regard. Civil Code, Sec.
1922 And besides the plaintiff asked for
only i've per cent. on the said principal
sum OF 81 800, for attorneys fees.' It has
been held that when the mortgage fixes
the amount OF the attorney s fee, it is error
Tor the court to allow larger sum than
that SO fixed. tMonroe VS.. Foil, Y Cal.
56S9 We think that rule should be APP
piled here.
We find no other error in the record. The
hnd1ngs seem to be sufficient and with
out conflict. We therefore advise that the
Judgment be modified by reducing the
amount allowed for attorneys fees to S125,
and that as SO modified the Judgment and
order be affirmed, the appellants to re-
cover costs on appeal. BELCHER, c..
We concur:
VAN CLIEF, c.,
HAYNE, c.
THE COURT.
For the reasons given in the foregoing
opinion the Judgment is modified BY re-
auclng the amount allowed for attorney
lees to Sis, and as so modified the iudg-
ment and order is affirmed, the appellants
TO recover costs on appeal.
Filled February 8, 1871
Appeal from Superior Court of San
Francisco County, Department Five
John Hunt, Judge.
For appellant, E. S. Lippitt and Chas.
f. HanIon.
For respondent, t. J. Crowley.
IN BANK.
HoYT, Respondent,
Appellant.
The appeal in this case was dismissed
by the court in bank on December II /.
1880, and rehearing thereafter granted.
upon null consideration we are satisfied
with our former opinion, and for the rea-
sons therein stated the motion to dismiss
the appeal must be granted.
1t is true that tor some purposes a. day
IS regarded as an indivisib1e unit, and
that IN the cases where such rule prop
erly applies, courts refuse to look into
fractions of day for the purpose of de-
ternlining which of two acts was first in
point OF time; but when the question
whether one legal right shall have prior
1ty over another depends upon the order
OF events occurring on the same day, this
RUE is necessarily departed from. Ma
tlonal Bank vs.. Burkhardt, 100 O.. S. $50:
Louisville VS.. Savings Bank, I4 q. S.
4i4.) And IN Main VS.. Gilman I'll Fed
eral Reporter, 214), it is said: cit is in
sisted that the law knows no fractions OF
day. But this ancient maxim is now
chiefly known by it's exceptions. When
private rights depend upon it the courts
inquire into the hour at which an act was
done, or decree was entered, or an at
tachment was laid, or any title accrued. -
In the case of Hill VS.. Finnigan ga Cal.
3l3), the material fact, as to whether the no.
tlce OF motion to dismiss was given prior
to the time of filing the transcript was a
matter OF controversy, and what was there
SAID about not looking into fractions of a
day Tor the purposes of dismissing an ap-
peal, must be considered as having refer
ence only to the then state of facts before
the court, and the general language there
used should not be considered as furnish
ing rule for a case like this, in which
1t is not denied that the notice of motion
to dismiss was given before the filing of
the transcript on appeal.
Appeal dismissed.
We concur: DE HAVEN r.
MCFARLAND, j.,
AIERSON, D.,
SHARPsTEIN, j.,
HARRISON, j.,
GARoUTTE, j.,
BEATTY, GU.
lf1led January 81, 1911
Appeal from Superior Court, San Luis
Obispo County,. A. Gregg, Judge.
For appellant, Graves, Turner & Graves.
For respondent, Venable d Goodchild.
DEPARTMENT TWO.
CAMPoDoNIco, Respondent,
VS..
The OREGON IMPROVEMENT NO. 1o,ooo.