Webb v. Winter

COOPER, C. This action was brought by plaintiff, as administrator with the will annexed, to recover from defendants possession of lot 22, block 12, in the town of Red Bluff. The case was tried before the .court, findings filed and judgment entered for plaintiff. Defendants made a motion for a new trial, which was denied, and this appeal is from the judgment and order denying the motion. There is practically no controversy about the facts, which are substantially as follows: John E. Church, during his lifetime, was the owner of the premises described in the complaint, the same being community property. On January 13, 1886, said Church died, leaving a will, by the terms of which he appointed his wife, Elizabeth, executrix without bonds. He left surviving him, besides his widow, two children—Flora C. Pryor, a daughter, and E. C. Church, a son. By the terms of the will the deceased left all his property to> his surviving wife during her life, and at her death to be equally divided between his children. The will authorized the executrix, if necessary for the support of herself and children, to grant, bargain, sell and dispose of all of said estate at private sale, without any order of court therefor. Elizabeth Church qualified as executrix, letters were issued to her, and she continued executrix until her death, September 22, 1898. On February 21, 1890, the said Elizabeth Church borrowed $2,500 from defendant Mary Winter, and also $2,500 from George G. Winter, her husband. To secure the said loans, she, without any order of court, and in her individual capacity, executed mortgages to said defendant Mary Winter, and to her husband, George G. Winter, upon said premises, which were described in said mortgages as though said Elizabeth Church were the owner in fee thereof. George G. Winter subsequently died, and defendant Mary Winter succeeded to his title, thus becoming the owner of both mortgages. The indebtedness not having been paid, nor the interest, the defendant Mary Winter, in 1893, commenced proceedings to foreclose the said mortgages, making Elizabeth Church in her individual capacity defendant. The two surviving children, Flora C. Pryor and E. C. Church, who were then each of lawful age, were also made defendants, the complaint alleging that they had, or claimed to have, some interest in or to said premises, which interest was alleged to be subsequent to and subject to plaintiff’s lien. The defend-[770]ants in said foreclosure proceedings each made default, and on June 26, 1893, a decree of foreclosure was duly entered in favor of plaintiff therein and against said Elizabeth Church, E. C. Church and Flora C. Pryor. On August 30, 1893, the premises were sold to defendant Mary Winter by virtue of the said decree and order of sale, and a certificate of sale issued and delivered to her, and she thereupon entered into, and ever since has remained in, possession by herself and her tenant, Sobel, who is made a codefendant herein. On March 2, 1894, a deed was issued to defendant Mary Winter by the commissioner who made the sale under the foreclosure proceedings. Since her purchase on August 30, 1893, defendant Mary Winter has paid the taxes levied and assessed upon the premises, except the second installment of taxes for the year 1898, which were paid in November, 1898, by the plaintiff herein. On September 22, 1898, the said Elizabeth Church died, leaving the estate in process of settlement. At the time of her death there had been no distribution, and no final account filed or settled. On November 19, 1898, the plaintiff was appointed administrator with the will annexed of the said estate, letters were issued to him and he ever since has been such administrator. This action was commenced July 31, 1899.