Mechanics' Building & Loan Ass'n v. King

Belcher, C. C. — The plaintiff, a corporation, commenced this action on the twenty-fourth day of October, 1888, against Josephine M. King, in her individual capacity, and as executrix of the last will and testament of Manuel J. King, to foreclose a mortgage on certain real property and a lien on five shares of plaintiff’s capital stock.

The court below refused to grant a decree of foreclosure, and the plaintiff appealed. The case comes here on the judgment roll.

[441]The facts found by the court are, in substance, as follows: In March, 1877, Manuel J. King and Josephine M. King were husband and wife. They owned and resided upon certain community property, and on the fourteenth day of that month jointly executed, acknowledged, and filed a declaration of homestead thereon. From that time until the death of the husband the premises continued to be their homestead.

On the second day of February, 1885, they made their joint promissory note to the plaintiff for one thousand dollars, payable two years after date, and to secure payment of the note, they, on the same day, executed to the plaintiff a mortgage on their homestead property. At that time they were subscribers to and owned five shares of the plaintiff’s capital stock, and this stock they also pledged to plaintiff as further security for the payment of their note.

The stock pledged was to be paid for in installments of one dollar per share per month, and the plaintiff’s by-laws provided “ that if any stockholder shall neglect or refuse to pay his monthly installments of interest, he shall pay a fine of five per cent per month upon the amount of the delinquency.” At the time of the trial, installments upon the stock, amounting to $180, had been paid, and there were unpaid installments amounting, with the fines for delinquency, to $107.45.

In December, 1885, Manuel J. King died, leaving a will, which was thereafter admitted to probate. Josephine M. King was duly appointed the executrix of the will, and gave due and legal notice to the creditors of the decedent to present their claims against the estate to her as such executrix. The claim on which this action is based was never presented to the executrix for allowance or rejection, and the time allowed by law for such presentation had expired when the action was commenced.

On the fourth day of May, 1888, the property de