Thomas v. Parker

The Court. This action was brought to foreclose a mortgage executed in favor of the plaintiff by the administrator of Mary E. Parker, deceased. The purpose for which the mortgage was given seems to have been to borrow money with which to pay certain debts .of the decedent contracted in her lifetime, and to pay expenses [457]of administration, family allowance, etc. The defendants are the husband, who is also the administrator of Mrs. Parker’s estate, and her minor children. Demurrers were filed to the complaint and overruled, the defendants then answered the complaint, and upon evidence given in the premises, findings being waived, the trial court entered a decree of foreclosure in accordance with the prayer of the complaint. From the judgment thus made this appeal is taken on the judgment roll and bill of exceptions.

One of the grounds upon which a reversal of the judgment is demanded is, that the petition which was filed by the administrator when seeking to obtain the order of the probate court to mortgage the real estate of his decedent was insufficient, and did not therefore give that court jurisdiction to make the order. The law under which this proceeding can be had is to be found in the Code of Civil Procedure, sections 1577 and 1578. A critical examination of the petition and of the language of the statute makes it clear that the petition is sufficient.

The further contention of appellants, that the mortgage sought to be foreclosed was not executed by J. L. Parker in his character as administrator of the estate of Mary E. Parker, and is therefore only a personal mortgage of said Parker, is clearly without merit. The mortgage, after referring to the order of the superior court authorizing its execution, proceeds to recite: “Mow, therefore, the said mortgagor, pursuant to the order last aforesaid, .... mortgages to the mortgagee,” etc. This, with the other recitals, is sufficient to show that the mortgage was intended as a mortgage of property belonging to the estate of which the mortgagor was administrator, and was executed by him in his character as administrator, in pursuance of law and the order of the superior court directing its execution.

It is further argued that the order to show cause required by the second subdivision of section 1578 of the Code of Civil Procedure is insufficient, because it docs [458]