Meetz v. Mohr

VAN DYKE, J.

Following the complaint in this case, temporary injunction was issued, and the defendants thereafter, upon notice and supported by affidavit and answer to the complaint, moved the court to dissolve the same, which was granted, and the appeal is taken from such order dissolving the injunction.

[669]

The complaint stated substantially the following facts: That plaintiff’s testator, Theodor Meetz, on the twelfth day of February, 1897, made and delivered to defendant, M. J. Rudolph Mohr, a promissory note for sixteen hundred dollars, and at the same time conveyed to Emil Mohr, as trustee, a deed of certain real estate in Kern County, also transferred to said Emil Mohr certain personal property, all as security for the payment of the said sixteen hundred dollars, and also to secure said Rudolph against any liability that might arise against him out of the indorsement of certain promissory notes for said Meetz, and any indebtedness that might be due to said Rudolph on open account'. It was provided that in the case of default in the payment of said indebtedness the trustee should proceed to sell said property, and out of the proceeds of said sale discharge said indebtedness and render the surplus to said Theodor Meetz, and it was also provided that upon the payment of said indebtedness or the release of said Rudolph from the said indorsement upon said notes all the property referred to in said deed of trust and agreement should be reconveyed by the trustee to said Theodor Meetz. ' Thereafter, and prior to the commencement of the action, it was averred that Theodor Meetz died testate in .the county of Alameda, the place of his residence, and that by his will plaintiff was named as executrix, and thereafter the will was duly probated, and she was appointed as such executrix of the will. It is further averred that the defendants Tillie Mohr and William F. Hoelscher, trustees, have advertised for sale said lands for payment of the indebtedness alleged to be due and owing from said Theodor Meetz to the defendant Rudolph Mohr, which is claimed by said Rudolph to be the sum of twelve thousand dollars, being the full amount of all the promissory notes mentioned, those that he had indorsed as well as the notes payable to him, but that, as plaintiff is informed and believes, the said estate is not indebted to said Rudolph Mohr in the sum of twelve thousand dollars, or in any sum in excess of two thousand dollars on said notes, exclusive of interest, and that the entire indebtedness now due or owing from said estate to said Rudolph does not exceed the sum of six thousand dollars, and that the said Rudolph never paid any of said notes which he indorsed, except a note