Burnett v. Lyford

Harrison, J. Action for the foreclosure of three mortgages executed to the Hibernia Savings and Loan Society by Thomas B. Deffebach and his wife, Inez Reed Deffebach. The property mortgaged was the separate estate of the wife, and the moneys obtained by the mortgages were advanced by her to discharge the personal obligations of her husband. Inez died intestate, September 15, 1883, and Thomas died intestate, June 21, 1884. The defendant Lyford is the administrator of the estate of each of the said decedents, and the defendant Judson is alleged to have some interest in the mortgaged property, subject to the lien of the mortgages. The rec[116]ord does not disclose the extent or character of this interest, but in their brief his counsel state that it is an undivided one third of the mortgaged lands, acquired by him through an execution sale upon a judgment against Thomas. (Judson v. Lyford, 84 Cal. 505.) This interest was derived by Thomas upon the death of his wife, as the heir to one third of her estate. After the death of the mortgagors, the Hibernia bank made due presentation and proof of its claims upon the mortgages against their respective estates, which were allowed and filed, and thereafter the same were assigned to the plaintiff herein. An answer was filed by the defendant Lyford, as administrator of Inez, setting up that the property mortgaged was her separate estate; that the debts secured by the mortgages were the separate obligations of Thomas; that, as between them, she was only a surety for Thomas; and that upon her death one third of her estate descended to Thomas, and the other two thirds to her children. No answer was filed by Lyford, as administrator of the estate of Thomas. Judson, in his answer, did not set forth the character of his interest in the lands or allege any affirmative matter, but merely denied the assignment to the plaintiff of the notes and mortgages sued on, and denied that they were unpaid. Judgment having been rendered in favor of the plaintiff, Judson moved for a new trial, which was denied. From this order he has appealed, but no appeal has been taken from the judgment itself.

The plaintiff offered in evidence the several notes and mortgages sued on, upon each of which was the following indorsement: —

“For value received, the Hibernia Savings and Loan Society hereby sells, assigns, transfers, and sets over to George G. Burnett, all its right, title, and interest in and to the within note.

“Hibernia Savings and Loan Society.