Lawrence v. Wilson

RICHARDS, J.

This was an action to foreclose a mortgage executed by one Mabel Lawrence to the plaintiff, her husband.

The facts of the case, concerning which there is no material dispute, may be briefly stated as follows: On the tenth day of July, 1914, Elizabeth Wilson, who was the mother of said Mabel Lawrence, executed to her a deed of trust covering the property ■ involved in this action, wherein she was directed, as such trustee, to hold said property in trust during the life of the grantor, Elizabeth Wilson, and her husband, Peter S. Wilson, and the survivor of them, and during said period to receive the rents and profits of said property and apply the same to the use of said Elizabeth Wilson and her said husband during their lives, and upon the death of the survivor of them to convey said property in fee simple to certain children of said Elizabeth Wilson and her husband in equal proportions as tenants in common thereof, it being provided that if any of said children be dead at the time set for said conveyance by the trustee the share of such deceased child should be conveyed in equal shares to his or her children; and if there were no children of such -deceased child, then such share was to be equally divided among the other surviving children of said Elizabeth Wilson. The deed of trust further contained the following provision: “In case in the judgment of said trustee under said deed of trust the rents and profits of said real estate should be insufficient to pay for the maintenance of the said Elizabeth M. Wilson and her said husband while they live, the said trustee was thereby

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empowered to mortgage, lease or sell the said real property or any part thereof, and to hold or invest or apply the proceeds to the support and maintenance of the said Elizabeth M. Wilson or her said husband while they both lived.” It further appears from the evidence that Elizabeth Wilson died intestate on January 1, 1915, and that her husband, Peter S. Wilson, died testate on September 9, 1916, and that Mary Wilson, one of the children of Elizabeth and Peter S. Wilson named in said deed of trust, died on June 25, 1916, leaving at the time of her death six surviving minor children, who, are joined as defendants in this action. On the 11th of March, 1916, after the death of Elizabeth Wilson, the grantor in said deed of trust, but while her husband, Peter S. Wilson, was still living, Mabel Lawrence borrowed from her husband, Joseph Lawrence, the plaintiff herein, the sum of one thousand eight hundred dollars, for which she gave her • promissory note, which was also signed by George M. Wilson and Daniel T. Wilson, the two sons of Elizabeth M. Wilson named in said deed of trust, which said promissory note was secured by a mortgage executed by said Mabel Lawrence, as trustee, upon the trust property. This loan being unpaid the present action was instituted for the foreclosure of said mortgage, the surviving children and the above-named grandchildren of Elizabeth and Peter S-. Wilson being joined with the said mortgagor as parties to the action.