Schwan v. Superior Court

WASTE, C. J.

Petitioner herein seeks by writ of mandate to compel the respondents, Superior Court and the judge thereof, to hear and determine an application filed by her as executrix of the estate of the above-named decedent, for an order authorizing the execution of a deed of trust, which is to serve as security for a promissory note sought to be executed to pay off and discharge a certain note, and mortgage securing the same, already existing and constituting an encumbrance upon the real property of the estate. Application for the order was made under the provisions of section 1578 of the Code of Civil Procedure as amended in 1927 (Stats. 1927, p. 831), which prescribe, among other things, the proceedings to be taken by an executor, administrator, or guardian applying for an order authorizing the execution of the deed of trust upon any property of the estate of which he is in charge. Notice of the hearing of the application was duly given, but the respond

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ent judge of the court below refused to hear the matter upon the ground that the court was without jurisdiction to make the order prayed for.

Prior to the amendment of section 1578,

supra,

it was already provided in section 1577 of the Code that, whenever in any estate in course of administration, or in any guardianship proceeding pending, it shall appear to the superior court, or to a judge thereof, to be of' advantage to raise money upon a note or notes to be secured by a mortgage of the real property of the decedent, or of the minor, that may. be done on obtaining an order in due course therefor. The procedural steps necessary to be taken were to be found in section 1578. At the 1927 session of the legislature two companion bills were introduced, one of which provided for the amendment of section 1577 by incorporating therein an express grant to executors, administrators, and guardians of the additional power to execute trust deeds upon property in their charge. The second bill provided for such an amendment to section 1578 as would cause its procedural provisions to conform to the proposed amendment of section 1577, by adding thereto express references to deeds of trust. Each of these bills passed the two houses of the legislature, but only one of them, that amending the procedural section, 1578, was signed by the governor. Respondents therefore urge that, while it was obviously the intent of the legislature in passing both bills to grant to executors, administrators, and guardians the power to execute trust deeds, and to prescribe the procedure therefor, inasmuch as the bill purporting to amend the substantive provisions of section 1577 was not signed by the governor, and therefore failed to become law, the power to execute trust deeds was not granted.