Moran v. Gardemeyer

Fox, J. This is an action by a mortgagee against the executors of a mortgagor for foreclosure. December 29, 1882, Johanne C. F. Gardemeyer, otherwise called and usually writing his name Christian Gardemeyer, made to plaintiff his promissory note for three thousand dol[97]lars, due two years after date, with interest at the rate of nine per cent per annum, payable semi-annually, and if the principal or interest was not paid at maturity, then the same was to bear interest at the rate of one per cent per month until paid. To secure the payment of this note according to the terms thereof, he, at the same time, made and executed to plaintiff a mortgage of certain real estate situatedn the county of Alameda, which was duly acknowledged and recorded. This mortgage expressed on its face that it was to be security not only for the promissory note aforesaid, but also “for all further advances to the mortgagor by the mortgagee, and other indebtedness to the mortgagor by the mortgagee that may exist, arise, or be contracted before the satisfaction hereof, such further advances and indebtedness not to exceed the sum of five hundred dollars, exclusive of interest.”

Nothing was ever paid on the said promissory note, except the interest to December 28, 1884.

According to the allegations of the complaint, on the 11th of October, 1884, one P. D. Gardemeyer made his promissory note payable to the order of the mortgagor above named, for the sum of $750, due one day after date, with interest at seven per cent per month from date until paid; that on the 22d of November, 1884, the mortgagor, holder of said note,.indorsed and transferred the same to plaintiff,and that no part thereof,principal or interest, has been paid. It further appears that on the twenty-fifth day of May, 1885, the mortgagor died, and in due course his will was admitted to probate, and three of the defendants herein were appointed and qualified as executors thereof. The other defendants are minor heirs of t.lie deceased, and devisees under his will.

In due course the plaintiff presented his -claim upon both these notes to the executors for allowance, and both were allowed and approved by the executors, and by the court in probate. The claim as presented particularly [98]