Borel v. Kappeler

Citations

• 79 Cal. 342
• 21 P. 841
• 1889 Cal. LEXIS 732

Syllabus

<p>Mortgage—Application of Rents and Profits — Estoppel, of Prior Mortgagor. — A mortgage containing a covenant that in case of default the mortgagee may enter and collect and apply the rente and profits to the indebtedness does not bind the mortgagee to collect and apply the rents; and when a second mortgage to the same mortgagee is made by one of the first mortgagors, upon his interest in the same premises, at the request of the other mortgagor, conferring on the mortgagee an immediate right to collect all rents and profits, and apply the net proceeds, after deducting a commission for collection, and all taxes, assessments, and insurance, towards the discharge of the second mortgage, the terms of the first mortgage are not violated by compliance of the mortgagee with the terms of the second mortgage, and if such application is made, and is known and consented to by the other mortgagor, who joined in the first mortgage, he is estopped from contesting the same.</p> <p>Id.—Option to Mortgagee to Purchase — Cost of Building—Credit on Mortgage—Findings. —When a mortgage gives the mortgagee an option to purchase a third interest in a lease owned by the mortgagers, by paying one third of the cost of the building mortgaged, and such option to purchase was exercised, a direct issue as to whether the proper credit was given on the mortgage on account of the purchase is material, and a failure to find thereon is ground for reversal of a decree foreclosing the mortgage. If the complaint alleges the cost of the building, a finding that a credit for less than one third the cost alleged was made on the mortgage by agreement does not show a sufficient credit, and the judgment is erroneous as- to the difference and interest thereon.</p> <p>Id. — Ascertaining Amount Due;—Appeal—-Error; not Appearing.— When, the record on appeal does not show affirmatively that certain items objected to as improperly included in arriving at the amount due on the mortgages in suit were in fact so inc