Porter v. Muller

53 Cal. 677 | Cal. | 1879

By the Court :

At the time of the arrangement between Porter, Kroeckel, and Muller, the whole, land was subject to the lien of the mortgage in suit. The arrangement was to the effect that Kroeckel should convey to Porter his undivided half of the lands; that Porter should satisfy the two notes and mortgages given by Kroeckel to Porter; and that Muller should be responsible for the whole of the amount due upon the. note and mortgage in suit; and that the mortgage should be a lien upon his half of the lands; and that the half of the lands conveyed by Kroeckel to Porter should not be chargeable therewith.

That agreement was virtually the imposition of an additional mortgage lien upon the lands of Muller; and within the meaning of sec. 2922 of the Civil Code, such lien can be created only by an instrument in writing, executed with the formalities required in case of grant of real property. It was not proven that the alleged agreement was made in writing; but it appears to have been entirely verbal, and therefore the finding that the alleged agreement was made is not sustained by the evidence.

Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith.