Fast v. Steele

HAYNES, C.

This appeal is- from a judgment in favor of the plaintiff foreclosing a mortgage executed to him by Walter D. Steele as executor of Mrs. C. L. Steele. The defendants who have taken this appeal are interested in the estate of said testatrix.

The authority to execute said mortgage was not given by the will of the deceased, but it was executed under an order of the court, made for that purpose upon the petition of the executor; and it is contended by appellants “that the executor has not exercised the power to mortgage given him by the court in the manner prescribed by the order from which all his authority was derived.”

That order, so far as material here, is as follows: “It is therefore ordered that said executor execute in the name of and for the benefit of said estate a mortgage of all the land and improvements described in said petition to any person, or firm or corporation who will lend said estate the sum of sixteen hundred and fifty-three dollars and seventy-two cents in gold coin of the United States of America, payable on or before two years after the date of said mortgage, with interest not to exceed ten per cent per annum, payable semi-annually.”

This order was made June 17, 1896, and two days afterward the plaintiff loaned to the estate said sum, and the executor made and delivered to the plaintiff a promissory note therefor payable “on or before one year after date,” with interest payable semi-annually at the rate of ten per cent per annum, and also made and delivered to the plaintiff a mortgage upon the premises described in the order to secure the payment of said note.

It is said “that under said order the executor was authorized to execute a non-negotiable instrument of mortgage which

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the mortgagee should have no right to foreclose for two years from its date, and that instead of this he executed a negotiable promissory note payable on or before one year after' its date, and a mortgage to secure it.”

The proceedings to obtain an order to mortgage real property belonging to the estate of a deceased person are’fully specified in section 1578 of the Code of Civil Procedure, which provides that the order, among other things, shall authorize, empower, and direct the executor or administrator “to make such mortgage, and a promissory note or notes to the lender for the amount of the loan to be secured by said mortgage; .... and may prescribe the maximum rate of interest and period of the loan.” Said section further provides that the “jurisdiction of the court to administer the estate shall be effectual to vest such court and judge with jurisdiction to- make the order for the note or notes and mortgage, and such jurisdiction shall conclusively inure to the benefit of the mortgagee named in the mortgage, his heirs and assigns. Fo irregularity in the proceedings shall impair or invalidate the same, or the note or notes and mortgage given in pursuance thereof.”