Stambach v. Emerson

PER CURIAM. This action was brought by the plaintiff to foreclose a “probate mortgage” made by the defendant Frank N.- Emerson, as executor of the estate of William Calder, deceased, and Agnes Lee Emerson, the sole devisee under the will of said decedent, made pursuant to an order of the superior court. The other defendants, except Agnes Lee Emerson, hold liens against the interest of the Emersons as successors to the estate. The plaintiff answered the complaint in intervention, a trial was had, and the court found the amounts severally due the plaintiff, the intervener, and the other defendants,' and ordered a sale of the mortgaged premises, and that the proceeds be applied—First, to the satisfaction of the amount found due to the plaintiff; second, to the amount found due .the intervener; and, third, to the payment of the subsequent lienors in the order and amounts named. The intervener alone appeals.

The said mortgage was executed October 2, 1896, to secure a note of that date to the plaintiff for $2,000, with interest at ten per cent, payable quarterly. Agnes Lee Emerson, the sole devisee of the deceased, joined in the execution of the note and mortgage. There were three parcels of land belonging to the estate: The first (the parcel here mortgaged) appraised at $4,000; the second, at $2,000; and the third, at $400—in all, $6,400. The liabilities of the estate to creditors were: To the intervener, Theo. Woods, $1,500, unsecured; to Richard Hails, $1,000, secured by mortgage, executed by deceased in his lifetime, on the second parcel; to First National Bank of Santa Barbara, $1,000, unsecured; and to the Santa Barbara Savings and Loan Bank, $1,000, secured by mortgage—amounting in all to $4,500, besides some interest. The petition was for leave to execute the mortgage here in question for the sum of $2,000, for the purpose of paying the said claims of said banks, alleging that it was to the best interest of the estate that said property should not be sold; that there was then little or no demand for real estate; that said [988]banks were urging payment; that to force a sale of any part of the real estate would be ruinous to the interests of the estate; that the note to Theo. Woods, the intervener, bore interest at nine per cent per annum; and further alleged that “the interest thereon was paid up to that time,” and that the holder thereof “does not require its immediate payment.’] The complaint in intervention sets out a copy of said petition and order, admits that the money borrowed from the plaintiff was used in extinguishing the claim of said banks, and alleges that the executor afterward sold said second parcel for $2,300, and said third parcel for $500, and with the proceeds paid the mortgage claim of said Hails in full, and paid intervener upon her said claim $1,000, and the' court found there was unpaid upon her said claim, with interest, $630, and that there was unpaid upon plaintiff’s claim $2,559.71 and costs of suit.