Tully v. Harloe

Citations

• 35 Cal. 302

Syllabus

<p>Evidence as to Allegation admitted in Answer.—If the answer in replevin admits the value of the property averred in the complaint, evidence should not be admitted as to its value.</p> <p>When Error not Ground for ¡New Trial. — If the Court erroneously allows respondent to introduce evidence upon a matter not denied in the answer, but the appellant is not prejudiced thereby, a new trial will not be granted.</p> <p>Mortgage to secure Future Advances not Fraudulent.—A note and mortgage given in good faith for a greater sum than is due by the mortgagor to the mortgagee, to secure both a present indebtedness and future advances to be made by the mortgagee, is not fraudulent in law as to the creditors of the mortgagor because given for a greater sum than is due, even though the mortgage does not express upon its face that the excess is for future advances.</p> <p>Mortgage to secure Future Advances.—A mortgage given in good faith for the purpose of securing future advances expected to be made,‘is a good and valid security. Such mortgage need not express its object upon its face, although it is better it should.</p> <p>Fraudulent Mortgage.—A mortgage knowingly given for a sum greater than is due, and not in good faith, as a pretended security for future advances, is fraudulent in law as to the creditors of the mortgagor.</p> <p>Evidence op Value of Property in Replevin.—In replevin evidence may be admitted of the highest market value of the property between the time of conversion and trial.</p> <p>Fraudulent Intent a Question op Fact.—The question whether a mortgage given for a greater sum than is due was given in good faith, both for a present indebtedness and to secure future advances to be made, is one of fact for the jury under proper instructions from the Court.</p>