Marye v. Hart (1888) · DecisionDepot

Marye v. Hart

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court May 26, 1888 No. No. 11114Published

Before: Sharpstein

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Holding. The court held that a mortgage provision allowing the mortgagee to pay taxes on the property and add those payments to the secured debt does not violate the state constitution, and therefore the underlying agreement to pay interest remains valid.

Issues

Whether a mortgage clause allowing the mortgagee to pay taxes on the property and treat such payments as secured debt violates Section 5, Article 13 of the Constitution.
Whether the mortgage agreement to pay interest is rendered null and void by the constitutional provisions regarding taxation of mortgages.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We must so construe the various clauses of the constitution as to make them harmonize, if it can be done without distorting the meaning of any of them. This would not be accomplished by holding that section 5 prohibits what section 4 expressly permits.”

“We think the complaint states facts sufficient to- constitute a cause of action, and it follows that the judgment miist be affirmed.”

Synopsis

Mortgage—Provision for Payment of Tax on Mortgaged Premises— Constitutional Law — Interest. — A clause in a mortgage authorizing the mortgagee to pay taxes imposed upon the mortgaged premises which are chargeable thereon, and providing that such payments and interest thereon shall be considered as-secured by the mortgage, does not have the effect, under sections 4 and 5 of article 13 of the constitution, to render void the agreement for the payment of interest on the mortgage debt.

Sharpstein, J. This is an appeal from a judgment' of foreclosure of mortgage, executed by the defendants to Emeline L. Haslam, deceased.

The mortgage was made to secure the principal and interest specified in a certain promissory note executed by the defendants to said Haslam, of even date with the-mortgage.

[292]The note was for $770, payable on or before June 10, 1887, with interest at the rate of nine per cent per annum, payable monthly in advance, and in case of default in the payment of any installment of interest, the entire unpaid balance of principal and interest to become due and payable at the option of the holder of the note.

This action was commenced February 6, 1884. The plaintiff alleges, and the defendants do not deny, that no part of the interest or principal had then been paid.

A right of action accrued before this action was commenced, unless by reason of a clause in the mortgage the agreement to pay interest was void. The following is a copy of the clause which appellant’s counsel contends renders the agreement to pay interest void:—

“And it is hereby agreed that it shall be lawful for the party of the second part, her heirs, executors, administrators, or assigns, to pay and discharge at maturity all taxes or assessments, liens, or other encumbrances now subsisting or hereafter to be laid or imposed upon said lot of land or premises, and which may be in effect a charge thereupon; and also to pay (upon failure by said first parties so to do) the amount necessary to keep said premises insured as hereinafter stated, and such payment or payments shall be allowed, with interest thereon at the rate of two (2) per cent per month from the date of such payments, and such payments and interest shall be considered as secured by these presents, and a charge upon said premises, shall be repayable in the same kind of money or currency in which the same may have been paid, and may be deducted from the proceeds of the sale above authorized.”

To support this contention, section 5 of article 13 of the constitution is cited. The section reads as follows: —

“ Every contract hereafter made, by which a debtor is obligated to pay any tax or assessment on money loaned, or on any mortgage, deed of trust, or other lien, shall, as [293]

Marye v. Hart

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