W. H. HARRELSON, Respondent, v. M. S. G. TOMICH et al., Appellants

[No. 19514. Department Two. July 2, 1895.] W. H. HARRELSON, Respondent, v. M. S. G. TOMICH et al., Appellants. Mortgage—Oral Agreement for Payment of Taxes—Foreclosure— Evidence.—In an action to foreclose a mortgage, evidence of a contemporaneous parol agreement between the parties to the mortgage, whereby the mortgagor undertook to pay the taxes which might be assessed or levied upon the mortgage or the debt secured thereby, is inadmissible, for the purpose of defeating the mortgagor's liability for interest on the debt. Appeal from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. This action was brought to foreclose a mortgage upon property in Los Angeles county, given to secure a note for sixteen thousand five hundred dollars, with interest at the rate of eighteen per cent per annum. The defendants pleaded in their answer that, at the time and place when the note and mortgage were signed and delivered, it was understood between the plaintiff and the defendant, Maria S. G. Tomich, the mortgagor, as part of the same contract and the same transaction as the making of the note and mortgage, that the mortgagor would pay and discharge all taxes and assessments which might be assessed or levied upon the money loaned, or upon the mortgage. In support of this allegation in the answer, evidence was offered by the defendants of an oral agreement of the nature pleaded in the answer, which offer was rejected. Further facts are stated in the opinion of the court. W. T. Williams, and Beymert & Orfila, for Appellants. An agreement by the mortgagor to pay the mortgage tax releases the mortgagor from any obligation to pay the interest due upon the note. (Const., art. XIII, sec. 5; Burbridge v. Lemmert, 99 Cal. 493; Harralson v. Barrett, 99 Cal. 607.) Oral testimony is admissible where the validity of the agreement is the fact in dispute. (Code Civ. Proc., sec. 1856.) Albert M. Stephens, for Respondent. The parol evidence was not competent to prove that the mortgagor was obligated to pay the mortgage tax. (Daw v. Niles, 104 Cal. 106.) [MAJORITY — Britt, C.] 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.