93 Cal. 114 | Cal. | 1892
Action for the foreclosure of three mortgages executed to the Hibernia Savings and Loan Society by Thomas B. Deffebach and his wife, Inez Reed Deffebach. The property mortgaged was the separate estate of the wife, and the moneys obtained by the mortgages were advanced by her to discharge the personal obligations of her husband. Inez died intestate, September 15, 1883, and Thomas died intestate, June 21, 1884. The defendant Lyford is the administrator of the estate of each of the said decedents, and the defendant Judson is alleged to have some interest in the mortgaged property, subject to the lien of the mortgages. The rec
The plaintiff offered in evidence the several notes and mortgages sued on, upon each of which was the following indorsement: —
“For value received, the Hibernia Savings and Loan Society hereby sells, assigns, transfers, and sets over to George G. Burnett, all its right, title, and interest in and to the within note.
“Hibernia Savings and Loan Society.
[seal] “ By Miles D. Sweeny, President.”
And the said notes and mortgages, with the said indorsements, were admitted in evidence without objection.
The motion for a nonsuit was properly denied. The admission of the notes with their indorsements was evidence before the court of the plaintiff’s title thereto
At the trial it was shown by the appellant that the assignment from the bank to the plaintiff was made at the instance of the defendant Lyford, and that he (Lyford) furnished the money which was paid therefor to the bank. Upon these facts, it is urged by the appellant that Lyford is the real party in interest, and that inasmuch as by section 1617 of the Code of Civil Procedure an administrator is forbidden to purchase a claim against the estate he represents, the legal effect of the transaction was to operate as a payment of the notes, and consequent release of the mortgage liens.
Whether the plaintiff is the real party in interest, or whether the defendant Lyford is the beneficial owner of the notes and mortgages, is immaterial to the appellant, and is not available to him as a defense herein. No allegation in reference thereto was made by him, and if he has any defense against Lyford which he would not have against the plaintiff, or if the assignment to Lyford would have given to the appellant greater rights than did the assignment to the plaintiff, it was incumbent upon him to make such allegation in his answer. (Poorman v. Mills, 35 Cal. 121; 95 Am. Dec. 90.) The assignment of the notes to the plaintiff prima facie vested him with the title thereto, and the right to bring the action; and if the appellant would question this right, it constituted matter of defense which he should have alleged.
We do not think that the provisions of section 1617 of the Code of Civil Procedure have any application to the facts of the present case, or can be invoked by the appellant to defeat the action for the foreclosure of the mortgages.
If an administrator, with the desire of protecting the estate which he represents against a sacrifice of its property under the foreclosure of a mortgage, should, in case there were no funds of the estate in his hands, advance his own funds with which to relieve the property from
The case of Jones v. Hanna, 81 Cal. 507, invoked in support of the contention of appellant, is inapplicable. In that case the plaintiffs purchased the property of the estate of Hanna under an express agreement with the administratrix that the purchase should be for her individual benefit, and the transaction was held to be invalid, for the reason that it was indirectly a purchase by the administratrix of the property of the estate she represented, and therefore in violation of the express terms of section 1576 of the Code of Civil Procedure.
The order is affirmed.
Garoutte, J., and Paterson, J., concurred.
Hearing in Bank denied.