California Title Insurance & Trust Co. v. Pauly

Vanclief, C. Action to foreclose a mortgage executed by the -San Diego Cable Railway Company (a corporation), to the plaintiff, in trust, to secure the payment of a series of bonds executed by the mortgagor. Before the commencement of the action, the said railway company had been adjudged an insolvent debtor, pursuant to the Insolvent Act of 1880, and all its estate, real and personal, had been duly assigned to the defendant, Pauly, who was the duly elected and qualified assignee of the estate of said insolvent debtor.

The plaintiff prevailed in the lower court; and the defendant, Pauly, appeals from the judgment of foreclosure, and from an order denying his motion for a new trial.

The appellant contends that the court erred in finding that a certain piece of land, known as the “ Pavilion Grounds,” was embraced in the description of the mortgaged property, and in ordering a sale of those “grounds” as a part of the property mortgaged; and this is the principal point in controversy on this appeal. Subsidiary to this, however, a question is raised as to whether the court erred in admitting certain parol evidence for the purpose of applying the description contained in the mortgage to the “ Pavilion Grounds.”

The description of the mortgaged property in the mortgage is as follows:

“All and singular the franchises and lines of railway and appurtenances thereof of the said San Diego Cable Railway Company, which lines of railway commence at the corner of Sixth street and L street, in said city of San Diego, and thence extend along said Sixth street to [124]C street, on C street to Fourth street, on Fourth street to Uewhall avenue, and thence on Uewhall avenue and connecting streets eastward to terminus at University Heights, in said city of San Diego, a distance, including curves and switches, of five miles; and all the concrete subway, cables, cars, dummies, and other rolling stock, equipment, machinery, powerhouses, fares, rents, income, and other property of the said San Diego Cable Railway Company, appurtenant to its lines of railway above described, and its real, personal, and mixed property, franchises, rights of way, privileges, interests, and appurtenances of every kind and nature, that it now owns or that it may hereafter acquire for use or adapted to use on or about its said lines of railway; also, the following described parcel and tract of land situated in the city of San Diego, county of San Diego, state of California, to wit: