Marshall

These appeals were submitted together, and will be so considered. Both are taken from a decree of foreclosure and sale, and from an order refusing a new trial of the action—one being brought by the defendant and the other by the intervener. According to the averments of the complaint in intervention, the liens claimed by the intervener grew out of contract. The agreements out of which they are alleged to have arisen are not in the pleading expressly stated to have been in writing, nor was that necessary. But if by statute they were required to be in writing, the intervener was bound to prove them by the production of the writings or other competent evidence, issue having been taken on the making of such agreements: Vassault v. Edwards, 43 Cal. 463 . By section 1971 of the Code of Civil Procedure it is provided:

And sections 2922 and 2924 of the Civil Code read:

At the trial the intervener admitted that the alleged agreements were not in writing, but were entirely verbal. They were therefore void under the provisions of the statute, and, being void, the court below rightly found that they were not made: Porter v. Muller, 53 Cal. 677 . But in one respect the decree appealed from…