Stewart v. Abernathy

WOOD (Parker), J.

Plaintiff appeals from “that portion of the final decree in partition” wherein it was ordered that the referee “pay to defendant Ida A. Maire $40.00 for her costs and $75.00 for fee for her attorney.”

Plaintiff and Rachael J. Abernathy, deceased, each owned an undivided one-half interest in two parcels of real estate, one improved and one unimproved. The improved property was encumbered with a deed of trust under which Ida A. Maire was the beneficiary, and the Title Insurance and Trust Company was trustee. Plaintiff commenced this action for partition of both parcels on December 12, 1941, naming as defendants the administrator of decedent Abernathy’s estate, the Title Insurance and Trust Company, Ida A. Maire and her husband Frank J. Maire. Ida A. Maire, hereinafter called defendant, and her husband were the only defendants who answered the complaint. The complaint alleged that there was an unpaid balance on the deed of trust of approximately $385.26 which became due, together with interest thereon at the rate of 7 per cent per annum, on November 23, 1935, and prayed for costs, reasonable attorney’s fees, and

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that amounts and priorities of liens and owners he determined and paid accordingly. Defendant’s answer denied that the balance of $385.26 became due November 23, 1935; alleged that the parties to the transaction had extended the time of payment of the note for a period of three years from November 23, 1935, by a duly executed written agreement which was recorded July 15, 1935; alleged further that that balance, together with the interest thereon, had been due and unpaid since November 23, 1941; and prayed for such balance, interest at the rate of 7 per cent per annum from November. 23, 1941, costs, disbursements, and reasonable attorney fees. The court found that the deed of trust appeared of record; that there was due and owing $385.26 thereon, together with interest at the rate of 7 per cent per annum from November 23, 1941, to the time of payment; and also found the property incapable of physical division and named a referee to sell same. The referee sold the unimproved property (for $25) and the improved property (for $1,000) to plaintiff, the highest bidder. Defendant’s lien was paid. The final decree ordered that the balance remaining in the referee’s hands be distributed equally between plaintiff and the administrator of the Abernathy estate after certain payments had been made which included $150 attorney fees and $12.50 costs for plaintiff, and $75 attorney fees and $40 costs for defendant.