
    [No. 7,851.
    Department One.]
    LORINDA WASHBURN v. THOMAS S. WILKINSON et Ux.
    Foreclosure of Mortgage—Payment of Insurance by Mortgagee—. Supplemental Complaint.—A mortgage contained the provision that upon the default of the mortgagors to keep the property insured, the mortgagee might insure at their expense and the mortgage stand as security for his reimbursement; and in an action to foreclose—in which there was no supplemental complaint—the Court allowed the plaintiff for money paid by her for insurance after commencement of the action. Held: The Court erred.
    Appeal from a judgment for the plaintiff, and from an order denying a new trial in the Superior Court of Sacramento County. Denson, J.
    
      The action was brought to foreclose four mortgages, one of which contained the provision that the mortgagors should keep the improvements on the mortgaged premises insured for two thirds of their cash value, and that upon their default in doing so the mortgagee might cause the same to be insured at the expense of the mortgagors, and that the mortgagors would, on demand, repay the mortgagee all sums which might be paid for any insurance on the premises, and that the mortgage should stand as security for the repayment of such sums. The amended complaint was filed August 26, 1880, and contains no allegations with reference to payments on account of insurance. On the trial two policies of insurance, dated respectively September 6, 1880, and September 4,1881, were admitted in evidence over the objection of the defendants that the same were irrelevant and not authorized by the several mortgages described in the complaint, and were issued after this action was commenced; and the plaintiff testified that she had paid the premiums mentioned in the two policies, amounting to the sum of two hundred and thirteen dollars and fifty-five cents, and this sum was allowed in the findings and in the judgment.
    
      J. H. McKune, for Appellants.
    
      Gv/rtis & Glunie and F. H. Moore, for Respondent.
   The Court:

It is not averred in the complaint that the mortgagor failed to keep the mortgaged property insured, or that the mortgagee conformed to the power contained in the mortgage in respect to the insurance. Neither is there any evidence of any insurance money having been paid by the mortgagee prior to the commencement of the action; besides, there is no supplemental complaint averring any payment of insurance since such commencement. It was, therefore, error for the Court to allow the plaintiff the amount paid by her for insurance.

Cause remanded, with instructions to modify the decree in accordance with this opinion.  