Harralson v. Barrett

Citations

• 99 Cal. 607
• 34 P. 342
• 1893 Cal. LEXIS 724

Syllabus

<p>Mortgage — Void Provision fob Taxes—Loss of Interest.—A provision in a mortgage that in case of foreclosure the mortgagee may include therein all payments made by the mortgagee “ for taxes on said premises, and the taxes of this mortgage or the money hereby secured ” is void, and renders void the mortgage as to any interest specified therein, and it is error for the court to allow interest on the mortgage note in an action to foreclose the mortgage.</p> <p>Id.—Payments of Void Interest—Waiver of Constitutional Provision__The provision of the constitution rendering invalid an agreement by the mortgagor to pay the mortgage tax, although inserted in the constitution for the benefit of the mortgagor, is a benefit which he may waive if he sees fit, and if he voluntarily fulfills his promise to pay interest, he is bound by his act, and he cannot recover it back, nor have it allowed as a credit on the principal of the loan.</p> <p>New Trial—Newly Discovered Evidence—Diligence—Appeal.—Where a motion for a new trial is made upon the ground of newly discovered evidence, but it is not shown that due diligence has been used in attempting to discover the evidence before the conclusion of the trial, an order denying the new trial will not be reversed upon appeal, although the evidence offered is material and not merely cumulative.</p> <p>Id.—Abuse of Discretion Newly discovered evidence after defeat is looked upon with suspicion, and the appellate court is always reluctant to interfere with the ruling of the trial court on a motion for a new trial on that ground, and will not do so unless there has been a clear abuse of discretion.</p>