In Re Estate of Lyon

[804]

HENSHAW, J.

This is an appeal by J. J. Bauer from the decree of distribution in the matter of the estate of Martha E. Lyon, deceased. By her will, which was admitted to probate, Martha E. Lyon devised and bequeathed her property, real and personal, one-third each to Frank D. Willey, her nephew, W. H. H. Willey, her brother, and Dr. P. R. Watts. F. D. Willey and Watts were appointed executors without bonds. By deed of date January 11, 1907, Watts conveyed all his interest in the estate to Frank D. Willey. On August 2, 1907, Frank D. Willey, as devisee and as assignee and grantee of Watts, executed a mortgage to the Market Street Bank of all his interest in the estate, which then (subject to administration) consisted of an undivided two-thirds thereof. This mortgage was given to secure the payment of Willey’s promissory note for seventeen hundred dollars, of even date with the mortgage, and also to secure the payment of all other indebtedness due by Willey to the bank, which in amount exceeded four thousand dollars. The mortgage contained the power of sale in case of default in the payment of the indebtedness. This mortgage was recorded upon August 6, 1907, and upon August 20, 1907, notice of the mortgage and of its recordation was filed with the court in probate in the matter of the Lyon estate. By assignment dated February 20, 1909, and recorded September 13, 1909, this mortgage, with all the indebtedness secured thereby, was transferred to appellant Bauer. He in turn assigned to one Casner upon September 8, 1909, the assignment having been recoided on September 13, 1909. The assignee Casner executed the power of sale in accordance with the terms of the mortgage, and caused the property to be sold at public auction on November 29, 1909. Bauer purchased at the sale and the deed of the property was made to him accordingly. Such is Bauer’s title to the distributive portion of Frank D. Willey.

On July 10, 1907, Frank D. Willey executed to the C. W. Clark Company, a corporation, a deed or assignment of all his interest in the estate of the deceased, described as being an undivided two-thirds interest in the real and personal property belonging to the deceased, but this deed was not recorded until August 31, 1907, and it further appears that while it was in form a deed, it was in fact a mortgage given to secure the payment of all sums due from Willey to the Clark Com