Godfrey v. Rogers , 3 Cal. 101 ( 1853 )

Heydenfeldt, Justice,

delivered the opinion of the court. Wells, Justice, concurred.

When this cause was here before, the claim of Rogers was allowed as an equitable lien, because he had been induced to advance the money by Wells, the holder, and subsequently the assignor, of the mortgage. But the guarantee of Wells extended no further than the contract then made, or about to be made, between Rogers and Caldwell.

The evidence disclosed no contract for interest until after the advances had been made and an account of them rendered. In this account, Rogers charges Caldwell five per cent, per month, and Caldwell assents to it. Now, although it is true, that as against Caldwell, this' charge for interest may be enforced, yet it cannot enter into the equity of Rogers’s claim for advances which are held a prior lien to Wells’s mortgage.

Wells guaranteed alone for the advances, as they were agreed on, or contemplated, at the time. It would be inequitable to allow any subsequent contract, for a heavy rate of interest, to partake of the guarantee, and such a rule would always leave the guarantor unprotected against collusive agreements.

Judgment affirmed.