Ambrose v. Drew

LORIGAN, J.

This is an action to foreclose a mortgage given to plaintiff and appellant by the defendant Mahulda C. Drew. The respondent J. H. Barker, as administrator with the will annexed of the estate of Bench Angle, deceased, being made defendant, filed a cross-complaint to foreclose an alleged prior mortgage on the same premises, executed by said Mahulda C. Drew. The other defendants made default. The appellant set up as a defense to the note and mortgage in the cross-complaint of respondent Barker, a want of consideration for its execution. The court found in Barker’s behalf, entered a decree of foreclosure in his favor as prior mortgagor, and from the judgment and an order denying the appellant’s motion for a new trial this appeal is taken.

The facts in the case are: That on May 7, 1893, the defendant Drew (the surviving widow of said Bench Angle) borrowed of the funds of the estate of said Angle the sum of three thousand dollars, to secure the payment of which she executed the mortgage set forth in the cross-complaint. The note was made payable to, and the mortgage executed in favor of, J. A. Cooper, who was then the attorney of the administrator of said estate. The said mortgage was recorded on the seventh day of August, 1893. In the subsequent year, on August 6th, the defendant Drew executed a note for the sum of $2,822.50, and a mortgage to secure its payment, in favor of plaintiff, upon the same premises described in the mortgage to Cooper, and it is this mortgage which this action is brought to foreclose. On the 30th of March, 1896, the respondent Barker was duly appointed administrator with the will annexed of said estate, and thereafter, on the 30th of April, 1896, said J. A. Cooper assigned and transferred to him, as the administrator of said estate, the promissory note

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and the mortgage securing the same which had been executed in his favor by the defendant Drew.

The only points made in the court below, and the main points urged upon this appeal, are that there was no consideration for the mortgage to Cooper set up by Barker as administrator, or consideration for its transfer to him by Cooper.

The note and this mortgage were admitted in evidence without any objection interposed on the part of plaintiff, together with the indorsement of recordation on the mortgage. The admission of the note in evidence without objection conceded its due execution, and the law imported a consideration. (Civ. Code, sec. 3104;