Higgins v. Manson

CHIPMAN, C.

—Foreclosure. Defendant had judgment on a general demurrer to the complaint, from which plaintiff appeals.

[468]

The action is brought against defendant as administratrix of her deceased husband’s estate. The complaint alleges that Homer Manson in his lifetime executed and delivered to plaintiff his certain written instrument, of which the following is a copy:

“$100.00. - San Francisco, Cal., Sept. 3d, 1896.

“One day after date (without grace), I promise to pay to the order of Charles H. Higgins the sum of one hundred and no' |100 dollars for value received, with interest at the rate of one per cent per month until paid, both principal and interest payable only in United States gold coin.

“(Signed) H. MANSON.”

“San Francisco, Cal., Sept. 3, 1896.

“In consideration of the sum of one hundred no |100 dollars, loaned me by Chas. H. Higgins, I this day deposit with' him as security my government patent to 160 acres of timber land in Humboldt county—certificate No. 7073—dated at Washington, D. C., the 18th day of October, 1889; said certificate to be returned to me if the sum of one hundred dollars, and interest at the rate of one per cent per Mo., is paid in one year from date.

“I further agree to transfer and assign over to Chas. H. Higgins all my right and title to said 160 acres of land—certificate No. 7073—should I fail to pay my obligation of one hundred dollars and interest on September 3, 1897.

“(Signed) HOMER MANSON.

“Witness:

“(Signed) Geo. E. Dodge.”

The complaint alleges that the patent referred to in the instrument was issued to Manson on October 18, 1889, by the United States, whereby title was transferred to Manson to the land sought to be sold, describing it; alleges nonpayment and waives recourse against the property of the estate other than the above-described property, and prays judgment “for the foreclosure of said lien and for the sale of said real property in satisfaction of said lien,” and for general relief.