Tomlinson v. Ayres

Chipman, C. Action to foreclose two chattel mortgages given to secure payment of certain two promis[569]sory notes executed by defendants, William and W. S. Ayres. Both notes were made payable October 24,1894. The mortgaged property consisted of a printing-office plant used in conducting the newspaper called the Western Watchman, situated in a certain building in the city of Eureka, Humboldt County, “located on the west side of ‘ G’ street, in said city, .... together with all the right, title, and interest of the said mortgagors of, in, and to the building in which said newspaper is now printed and published, and being on the west side of 4G’ street in said city . . . (same location as the said plant).”

The Western Watchman Publishing Company was alleged to claim some interest in a portion of the property, and was made a defendant. The complaint is verified. The defendants William and W. S. Ayres demurred to the complaint on various grounds, but withdrew the demurrer and answered, admitting the execution of the notes and mortgage as alleged, but denied “ that the whole of said sum and interest is wholly owing and unpaid from defendants,” as alleged in the complaint. These defendants a so filed a cross-complaint, in which they set out that they executed and delivered to plaintiff the notes and mortgages declared upon in the complaint, and that thereafter and before the commencement of the action, plaintiff became indebted to them for subscription to the “Western Watchman.” The defendant, the Western Watchman Publishing Company, answered, denying that the sums claimed to be due on the notes, or any sums, were unpaid. It set up as a separate defense that, about September 24, 1894, the defendants, William and W. S. Ayres, agreed to sell to it the mortgaged property, and, on January 6, 1896, the said agreement was finally consummated “ by proper bill of sale in writing signed and executed by them”; that the sale was in-good faith and with notice to plaintiff, and that this defendant is the lawful owner and possessor of the property, and its title is superior to plaintiff.

[570]The court gave judgment of foreclosure for plaintiff.

There are no findings of fact or conclusions of law except as they appear in the decree. Whether findings of fact were waived does not appear, and they must be presumed to have been waived. (Mulcahy v. Glazier, 51 Cal. 626.) The decree recites that the cause came on regularly to be heard, and that the parties were represented by counsel. Upon the issues joined, the court found the amount due and owing the plaintiff from defendants'William and W. S. Ayres to be one thousand eighty-eight dollars and fifty-five cents, and that it is secured by the chattel mortgages set out in the complaint and described in the decree, and that they are “ in all respects a valid and a first and best lien upon all the said property for the payment of the said sum,” and said William and W. S. Ayres are personally liable for the whole of said sum; that the conditions of the mortgages have been broken, and plaintiff is entitled to have them foreclosed, and the mortgaged property sold and the proceeds applied to the payment of said sum of money with costs and attorney’s fees; that each and all the averments of the complaint are true.