The herald. [microfilm reel] (Los Angeles [Calif.]) 1893-1900, 1893-02-23
FROM THE HIGHEST STATE COURT
The Decisions Received from
Supreme Court Judges.
One of Them of Great Importance
to Money Lenders and Borrowers.
Mortgage Which Requires the Mort
gagor to Pay Taxes Renders the
Mortgage as Regards Payment
of Interest Null and Void.

supreme court yesterday by Deputy
Clerk Sesnon, for filing in this city. One
of these, which is given below, is OF I'M
usual Importance, as it decides the ques-
ton for the first time, as to the validity
of the clause inserted in many
mortgages, which requires the mort
gagor to pay to pay the mortgage taxes,
the court holding that such an agree
ment renders the mortgage, as far as the
payment of interest is concerned, null
and void. The opinion referred to is as
follows:
Sarah R. Burbridge, appellant, vs.. p.
III. Lemmert, respondent. Action to
foreclose mortgage on real property to
secure the payment of a promiseory
note, dated January 20, 1889, for $12, goo,
made by defendant payable to plaintiff
or order five years after date, with in
terest at the rate of 10 per cent per
annum, payable annually, and if not so
paid annually, then the whole principal
and interest to become Immediately due
and payable at the option of the holder
of the note.
The defendant failed to pay interest
Tor the first year, and about six months
after it became due (September l, 1890)
this action to foreciose for both princi-
pal and interest was commenced. The
answer of the defendant denied that the
principal or any interest thereon had
over become due on said note or mort
gage, by reason of facts affirmatlvely
alleged in the answer, as follows:
'For second and separate defense
the defendant alleges: That at the city
and county of Loa Angeles. California,
On the Goth day of January, 1889, at the
time of the execution of the note and
mortgage set forth in the complaint, the
plaintiff demanded of the defendant the
execution of the agreement hereinafter
set forth as part of the said note and
mortgage. and in accordance with said
demand the defendant, with the said w.
@. Furrey, at said city, on said Goth day
of January, A. d. 1889, at the time of
the execution of said note and mort
gage and as part thereof, made, exc
cuted and delivered to the plaintiff an
agreement in writing and in the words
and figures following, to wit:
Southern California National bank.
1T is hereby agreed by P. II. Lem
inert as principal and W. @. Furrey,
surety, that In consideration of Mrs.
Sarah R. Burbridge lending P. II. Lem
inert twelve thousand ($l2,OOO) dollars
at 10 per cent interest. we, the under
signed, agree to and bind ourselves and
our assigns and heirs to pay all taxes of
whatever nature which may be assessed
against said mortgage of twelve thou
sand ($12,0O0) dollars, and that Mrs.
Sarah h. Burbridge or her assigns shall
be to no costs or expense on account of
taxes on said mortgage.
"P. II. LEMMERT, Principal.
"W. Q. FURREY, Surety.
"Witness II. M. Russell" En-,
allegations in the answer to be true
and, as a conclusion of law therefrom
found: "That the written agreement
set forth in defendants answer was and
is in contravention of section 5 of article
XIII of the constitution of this state, and
renders null and void all the provisions
of the said note and mortgage as to the
payment of any interest specified there
in" and consequently that no interest
ever accrued or became due, 30 as to
give plaintiff the right by election to
treat the principal as due prior to the
expiration of five years from the date
of the note; and thereupon rendered
judgment Diminishing plaintiffs COM
plant.
The plaintiff appeals from the iudg-
ment, and also from an order denying
her motion for new trial.
/. 1t is contended by counsel for
appellant that the findings of fact as to
the instrument set out in the answer by
which the defendant agreed to pay the
taxes on the mortgage, are not justified
by the evidence. 1t is claimed that the
instrument was Lot demanded nor au-
thorized by plaintiff; and was not exc
cuted at the same time the note and
mortgage were executed, nor as part
of the same transaction. Upon these
issues the evidence is conflicting, but
the preponderancs thereof seems to be
in favor of the respondent, and amply
sufficient to justify the findings of the
court. The evidence touching these
issues covers rs pages of the transcript.
and cannot fairly be condensed as not to
occupy more than reasonable space in
this opinion; and for this reason q state
ment of it is omitted.
2. The mortgage contains the same
provision as the note as to the conse-
quence OF failure to pay the annual
interest; and also authorized the mort
gagee, If necessary to protect the mort
gaged property, TO insure 1t, and to pay
the taxes thereon, "other than the taxes
on this mortgage or the money hereby
secured; and provides that the sums
30 paid, with interest at same rate,
shall be deemed to be secured by the
mortgage.
Counsel for appellant contends that
the express exception of the taxes
on the mortgage from the taxes which
the mortgage may pay and recover
the mortgagor with conventional in
terest, is inconsistent with stipula ton
In the same mortgage, that the mort
gagor is, nevertheless, to pay the taxes
on the mortgage; that ia to say, it ia in
consistent for mortgsgor and MORTGAGE
to agree that the MORTGAGE may pay
the taxes on the interest of the mort
gsgor in the land and recover it back
with interest, and at the same time
agree that the mortgagor shall pay the
taxes on the mortgagee's interest in the
land.
That the latter part of the agreement is
unlawful is clear; but that the two parts
of the agreement are necessarily incon.
How We Grow old.