Vincent v. Collins

BELCHER, C. This action was brought to foreclose a mortgage, executed by the defendant, H. J. Keymer, on lot 4, in block 13, of the city of Grass Valley, Nevada county. The mortgage [388]was dated September 26, 1892, and the complaint was filed September 2, 1896, naming as defendants W. J. Collins, assignee of the estate of H. J. Keymer, an insolvent debtor, H. J. Keymcr, Agnes Keymer and W. D. Harris. Due service of process was made on all of the defendants, but only H. J. Keymer, the mortgagor, appeared and answered, the defaults of the others being regularly entered.

The complaint alleges that on December 22, 1893, defendant H. J. Keymcr filed his petition in insolvency and was adjudged to be an insolvent debtor, and that thereafter the defendant W. J. Collins was duly appointed assignee of said insolvent’s estate and qualified as such, and that the clerk of the court duly conveyed and assigned to him all of the said estate.

The answer does not deny any of the averments of the complaint, but alleges that on December 20, 1893, said H. J. Keynmr filed a declaration of homestead on a portion of the said mortgaged lot, setting out therein the facts required in such case, and “that the remainder of the said lot, with the improvements thereon, after taking out said homestead, is amply sufficient to satisfy plaintiff’s claim.”

The cause came on regularly for trial on November 7, 1896, and a decree of foreclosure was signed and filed on the eleventh day of that month. It appears from the recitals in the decree that findings were waived by the parties, and that there was due and owing to the plaintiff upon the said promissory note and for money expended under the terms of the said mortgage, including interest, attorney’s fees and costs, the sum of fifteen hundred and seventeen dollars and three cents. It was adjudged that the whole of the mortgaged premises mentioned in the complaint be sold at public auction in the manner prescribed by law, by L. C. Garthe, a commissioner appointed by the court for that purpose, and that the said commissioner, out of the proceeds of the sale, retain his fees, disbursements, and commissions, and pay to the plaintiff, or his attorney, the amount found due him, with interest thereon from the date of the decree, or so much thereof as the said proceeds will pay. It was further adjudged “that it is necessary to sell the whole of said land in one parcel to satisfy the mortgage, and the whole of said land in one parcel is hereby ordered sold”; that “if more than the amount