Regents of University v. Gray

HARRISON, J.

The above-named decedent borrowed from the Regents of the University of California February 28, 1889, forty-seven thousand dollars, and executed to that body his promissory note therefor and a mortgage upon certain real property to secure its payment. After his death a claim was presented to the administrator of his estate on behalf of the Regents, setting out the promissory note and the amount due thereon, and this claim was allowed by the administrator September 13, 1894, for the sum of fifty-one thousand seven hundred and eighty-nine dollars and seventy-eight cents, and on September 23, 1895, this allowance was approved by the judge, and the claim so allowed and approved was filed with the clerk. The mortgage which had been given to secure the note was recorded in the office of the county recorder for Merced county March 2, 1889, in liber P of Mortgages, at page 228, but no claim upon this mortgage was presented to the administrator, and in the claim that was presented for allowance no reference was made to the date, volume, or page of record of the mortgage, nor did the claim describe the mortgage, or in any way state that it was secured by a mortgage upon real property. The claim as presented merely set forth a copy of the promissory note, with the amount due thereon, and the only reference to a mortgage was the following recital in the promissory note: “This note is secured by a mortgage bearing even date herewith.”

Other claims against the estate amounting to about thirty thousand dollars were presented and allowed, and December 18,

[391]

1897, the administrator obtained an order of the count for the sale of the property belonging to the decedent’s estate for the purpose of pa3dng the allowed claims against the estate, 'aggregating the sum of eighty-eight thousand seven hundred and sixty-nine dollars, and the expenses and charges thereafter to accrue, estimated at eight thousand four hundred and seventy dollars. Under a sale made by virtue of this order the Eegents purchased certain parcels of real estate, which were included in the aforesaid mortgage, for the aggregate sum of fifty-four thousand four hundred and ninety-nine dollars, and on April 27, 1898, upon the return of sales made by the administrator, the court made an order confirming the aforesaid sales to the Eegents, and directing the administrator to make and execute proper deeds of conveyance therefor upon payment to him of the purchase price for the same. Upon his offer to execute conveyances for the lands so purchased by them, the Eegents stated to Mm that they would not pay any sum of money whatever for said lands, hut would pay for said lands by the tender and delivery of a receipt for the amount of the purchase price to be paid for said lands, and would credit the said sum so paid upon their claim that had been presented and allowed, and would pay for said lands in no other way. The administrator declined to accept such receipt in payment, and upon the application of the Eegents, made July 11, 1898, he was cited to show cause why he should not execute to them conveyances for the lands so purchased by them. At the hearing upon this citation the foregoing matters were made to appear to the court, and the application of the Eegents was denied and the citation dismissed. From this order the Eegents have appealed.