Stambach v. Emerson

ANGELLOTTI, J.

This action was brought by the plaintiff to foreclose a mortgage made by defendant Frank N. Emerson, as executor of the will of William Calder, deceased, under an order of the superior court of the county having jurisdiction of said estate. Defendant Agnes Lee Emerson, sole devisee under the will of deceased, joined in the execution of said mortgage. The intervener was an unsecured creditor of the deceased, whose claim had been duly presented, allowed, and filed prior to the making of the mortgage order, and remains, in part, unpaid. The lower court found for the plaintiff, and decreed a sale of the mortgaged

[283]

premises to satisfy the mortgage. The intervener alone appeals from the judgment in favor of plaintiff.

The contention of appellant is, that the prob.ate court had no jurisdiction to make the order authorizing the executor to execute the mortgage, and the mortgage should therefore he declared void, in so far as it affects her claim against the estate. This contention, is based upon the claim that the petition presented by the executor for the order authorizing the mortgage did not show a purpose for which such a note and mortgage could, under the statute, be made. At the time of the filing of the petition for the mortgage order, there had been presented, allowed, and filed four claims against deceased,—viz., claim of Richard Hails for $1,000, secured by mortgage; claim of First National Bank of Santa Barbara for $1,000, bearing interest at the rate of nine per cent per annum; claim of Santa Barbara Savings and Loan Bank for $1,000, bearing interest at the rate of ten per cent per annum; and the claim of Theo. Woods, the intervener, for $1,500, bearing interest at the rate of nine per cent per annum. Intervener’s claim has since been reduced by payment to $500 and $130 interest. No other claims were ever presented, and there is no claim that the estate was not solvent.

The petition stated that the purpose for which it was proposed to make the note and mortgage was to pay the. claims of the two banks, it being shown thereby that said creditors demanded payment thereof; that petitioner had no funds in his hands wherewith to pay them; and that to force a sale of any portion of the realty at that time would be detrimental to the interests of said estate. It was further stated in the petition that the only other unsecured creditor, the intervener here, did not require immediate payment of her claim. The only claim now existing against the estate other than that of the intervener is that of the plaintiff on the mortgage in suit.