Webster v. King

By the Court, Currey, C. J.: Ejectment for a certain fifty vara lot of land in San Francisco. Both parties claim title to the premises from William Atherton. The plaintiffs, by deed executed by Atherton, hearing date in July, 1865, and the defendants by deed bearing date in June, 1851, executed by the executor of the estate of Robert Petch, deceased, in pursuance of authority contained in a mortgage executed by Atherton to Petch, hearing date the 8th of October, 1850.

Atherton, being the owner of the premises, on the 8th of October, 1850, mortgaged the same on that day to Petch, to secure the payment of a promissory note, in the sum of two thousand two hundred and ninety-two dollars and interest thereon at the rate of six per cent a month, on the 8th of April then next. In and by the mortgage deed Atherton constituted and appointed Petch his attorney in fact, granting to him full power and authority, in case the debt evidenced by the promissory note and the interest which should accrue thereon should not be paid when due, to sell the mortgaged premises at auction, after advertising the same for sale for twenty days, by at least two insertions of the advertisement in some newspaper published in San Francisco, and to execute, deliver and acknowledge a proper deed or deeds of conveyance, “ in his own name,” to the purchaser or purchasers, and after retaining the amount due on the note, and the costs and charges of such advertisement, sale and conveyance, to pay whatever should remain of the purchase money, if any, to the said Atherton, “ his heirs, administrators or assignees.” Petch died on the 4th of February, 1851, leaving a last will and testament, in which [350]he appointed David Long executor. In May following the will was admitted to prohate, by the Probate Court of San Francisco, and letters testamentary were granted and issued to said Long. In June of the same year, said Long, as executor of the estate and last will and testament of the deceased, sold said premises to the defendant King for two thousand six hundred and fifty dollars, claiming the right and authority so to do under the power contained in the mortgage. At the time of' the sale there was over three thousand two hundred dollars due on the note and mortgage. On the day of the sale Long, describing himself “ executor, etc., of Kobert Fetch, deceased” executed and delivered a deed of the premises to the defendant King, under which King entered into the possession of the property and erected thereon a dwelling house, and thereon resided, improving and using the same as his own property. The property was occupied by King and certain of the defendants, as purchasers of portions thereof from him, from the time of his entry into the possession until the trial of this action. During all this time Atherton made no claim to the property, but recognized by his declarations the defendant King as the owner of it by purchase from Long, by which said debt due the estate of Fetch was in part paid and satisfied.