
    [S. F. No. 1135.
    In Bank.
    August 3, 1898.]
    J. S. ANGUS et al., Respondents, v. CHARLES M. PLUM et al., Appellants.
    Mortgage—Recovery of Taxes Paid by Mortgagor—Case Affirmed— Stare Decisis.—Judgment for recovery from a mortgagee of taxes paid upon the mortgage by the mortgagor, affirmed upon the authority of 8an Gabriel Go. v. Witmer Co., 96 Gal. 623, upon the principle of stare decisis.
    
    APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Charles W. Slack, Judge.
    The action was brought to recover from the defendants, the surviving trustees of the Lick trust, the amount of taxes and penalty for the year 1895 paid by plaintiffs, as executors of the will of James G. Fair, deceased, upon a mortgage of three hundred thousand dollars executed by said Fair to said trustees. The mortgage was paid by plaintiffs after the assessment of the taxes thereupon for 1895. The taxes were subsequently levied, and were paid by plaintiffs, together with a penalty of four hundred and seventy-two dollars and fifty cents added April 13, 1896. The amount of taxes and penalty paid was six thousand seven hundred and seventy-two dollars and forty-eight cents, for which sum, with legal interest from the date of payment, judgment, was rendered in favor of the plaintiffs.
    Aylett R. Cotton, W. C. Burnett, and L. G. Burnett, for Appellants.
    Pierson & Mitchell, and Garrett W. McEnerney, for Respondents.
   THE COURT.

The judgment in this case must be affirmed on the authority of San Gabriel Co. v. Witmer Co., 96 Cal. 623. The clause of the constitution upon which the rights of parties depend was construed in that case, and the court was very evenly divided. We are now asked to overrule the decision then made, but, whether that decismn was right or wrong, it has been since acted upon, and was acted upon by the parties to this controversy, and we consider that it is protected by the rule of stare decisis.

J udgment affirmed.

Temple, J., dissented.  