California State Bank v. Webber

Citations

• 110 Cal. 538
• 42 P. 1066
• 1895 Cal. LEXIS 1093

Syllabus

<p>Foreclosure of Mortgage — Option to Renew Note—Presumption—• Burden of Proof.—In an action to foreclose a mortgage given to secure the payment of a note, where it appears that the original period for the maturity of the note was past at the time of the commencement of the action, the fact that the note provides that, if it is not paid at maturity, it is renewed from year to year, at the option of the holder, until paid, and that, during such year, the maker shall not have the right to pay the same, does not create a presumption that the note was renewed, in the exercise of the option, in the absence of evidence tending to prove it; and the burden is upon the maker to show affirmatively that the holder, in the exercise of the option given him, renewed the note, and thereby extended the time of payment to a day later than that on which the action was commenced.</p> <p>Id.—Renewal of Note—Extension of Time—Pleading—Affirmative Defense.—If there had been a renewal of the note, in the exercise of the option, whereby the time of payment was extended to a later day than that on which the action was commenced, such renewal would have been matter of affirmative defense, which must have been pleaded and proved by the defendant.</p> <p>Id.—Constitutional Law—Agreement as to Payment of Taxes—Option of Mortgagee—Credit upon Interest.—Where a conventional rate of interest is agreed upon, a verbal agreement that if the mortgagor should pay the taxes and assessments on the mortgage a reduction should be allowed upon the agreed interest, is not in violation of the constitution of the state, and does not release defendant from his contract to pay the conventional interest specified in the note.</p> <p>Id.—Verbal Agreement as to Taxes — Defense as to Interest.—A verbal agreement that the mortgagor shall pay the taxes upon the mortgage is no defense to the demand for interest.</p>