Muhs v. Hibernia Sav. and Loan Society

HENSHAW, J.

This is an action to quiet title to a part of Mission Block in the city county The action was commenced by Mary Grant, asserting ownership in the property. She died pending the action and her personal representative, plaintiff herein, was substituted. A supplemental complaint was filed alleging that August Pomieczynski had become the owner of the property by conveyance made to him by Mary Grant in her lifetime. He was called in and made a defendant by order of the court. The other defendant is The Hibernia Savings and Loan Society asserting a mortgage lien upon the premises. The stipulated facts are the following: On February 3, 1870, Michael Byron was the owner of the land, and on that date executed his promissory note to the defendant for the sum of one thousand eight hundred dollars, secured by mortgage. In 1875 he died. His will was admitted to probate and his widow, Mary Byron, was appointed executrix. No claim was presented

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by the defendant for allowance of the indebtedness, and no action was ever brought to foreclose the mortgage against the property, though by an instrument executed in February, 1876, Mary Byron, describing herself as executrix of the estate, recited the execution of the note and undertook to extend the time of payment to January 3, 1877. In 1880 Mary Byron married Patrick Grant and so became Mary Grant, the original plaintiff in this action. All of the other heirs of Michael Byron conveyed their interest in the land to Mary Grant and in June, 1892, the court in probate made its decree of distribution distributing this land to- Mary Grant. She was in possession thereof at that time and continued in possession until February, 1908, when she made conveyance of it to the defendant Pomieczynski. These facts were stipulated with the additional facts asserted by the defendant, and found by the court, -that no part of the principal sum or interest due upon the note had been paid. As conclusions of law from these facts the court found that neither Mary Grant nor Pomieczynski was entitled to a decree quieting the title “save and except upon- payment being made by them, or either of them, to the defendant, The Hibernia Savings and Loan Society, of the sum of $1800,” etc.; that upon payment of this sum a decree should be entered quieting title in Pomieczynski, and that upon failure for the period of thirty days the action should be dismissed. Pomieczynski and the executrix of the estate of Mary Grant are appellants.