Harrelson v. Tomich

Britt, C.

The controlling question here is whether it was competent for defendants to prove an alleged oral agreement entered into by the parties to the mortgage, for the foreclosure of which plaintiff prosecutes this action, and contemporaneously with such mortgage, whereby the mortgagor undertook to pay the taxes which might be assessed or levied upon the mortgage or the debt secured by the same; this for the purpose of defeating plaintiff’s claim to interest on, the debt. The court below excluded such evidence, and rendered judgment for plaintiff. Counsel agree that the question presented is substantially the same as that in Daw v. Niles, 104 Cal. 106, which case was yet pending in this court when the briefs were filed on the present appeal. That case having been since decided adversely to the views of defendants, on its authority the judgment and order appealed from should be affirmed.

Haynes, C., and Belcher, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

McFarland, J., Henshaw, J., Temple, J.