Dinkelman v. Harrison

SPENCE, J.

Plaintiff sought to quiet his title to a parcel of land in Merced County and he appeals from a judgment in favor of defendants.

The material facts are undisputed. All parties are agreed that in 1928* title to said parcel was in Edith G-. Elliott, now deceased. In that year, Edith G. Elliott and her husband George P. Elliott, also now deceased, executed a note in the sum of $2,500 in favor of plaintiff' and also executed a mortgage covering said parcel to secure the payment of said note. TSe* note was payable one year after date and the mortgage provided “Mortgagor shall pay all taxes, assessments and incumbrances on said property ...” Edith G. Elliott died intestate in 1933, leaving as her heirs her husband, George P. Elliott, her son George E. Elliott and her daughter Ruth E. Harrison. No personal representative was appointed until 1938, when Ruth E. Harrison was appointed administratrix of the estate of Edith G. Elliott, deceased. In due time plaintiff presented his claim upon said note and mortgage but said claim was rejected by the administratrix. Thereupon plaintiff brought an action to establish his claim and to foreclose said mortgage. In that action plaintiff had judgment and he becanie-tberpurchaser of the property upon the foreclosure sale, receiving the commissioner’s deed in 1940. George P. Elliott, the surviving

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husband, who had signed the note and mortgage, was made a party to said foreclosure action but his demurrer, pleading the statute of limitations, was sustained. The statute had not run, however, in favor of the administratrix. (Code Civ. Proc. see. 353.) George E. Elliott, the surviving son was also made a party to said foreclosure action. He claimed title to said property under a tax-deed, said claim being based on the facts hereinafter set forth. The trial court made no findings in the -foreeiostiTfr-nctiorLAy'ith respect to GeorgeETEHloft’s claim of title, .holding that it had no jurisdiction to try title in such action. Said action was therefore dismissed as to George E. Elliott without prejudice to the rights of any of the parties. George P. Elliott, the surviving husband, died in 1941 and Ruth E. Harrison was appointed administratrix of his estate. Thereafter this action to quiet title was brought against said Ruth'~E7Hfaxrisoiq Individually and as administratrix of the estate of George P. Elliott, deceased, and also against George E. Elliott, the surviving son.