118 Cal. 413 | Cal. | 1897
On December 15, 1893, William Kreling died intestate in the city and county of San Francisco, leaving as his sole heirs at law the plaintiff, who was his wife, and the defendant, who was his father. In January, 1894, the plaintiff was appointed administratrix of his estate, and thereupon duly qualified and entered upon the discharge of her duties as such. Prior to and at the time of his death he was in partnership with his father, engaged in various enterprises, and, among others, in the business of manufacturing furniture, under the firm name of
The controversy in this case is in regard to the indebtedness to the Anglo-Californian Bank. Plaintiff commenced the action on September 24, 1894, and alleged in her complaint, among other things, that, in pursuance of the order of the court approving the said agreement of compromise and directing that
Wherefore, plaintiff demanded judgment and a decree in effect compelling the defendant to specifically perform the agreement on his part by paying the claim of the said bank within ten days after the entry of the decree, and, on his failure to do so, that the said land be sold under the directions of the court to satisfy said claim, and that a commissioner be appointed by the court to carry the decree into effect.
The demurrer was overruled and the defendant then answered, setting up as a defense that the said agreement was obtained by fraud; that the plaintiff had not performed the covenants on her part; that the notes sued upon were given for the individual debt of the said deceased and were not the notes intended to be assumed; that the agreement was entered into through mistake, and praying that the same be canceled.
After a protracted trial the court found all the material facts in favor of the plaintiff, concluding as follows: “That all the allegations and averments of plaintiff’s complaint are true, and all the denials and allegations of the defendant in his answer inconsistent with or contradictory to the allegations of plaintiff’s complaint are untrue.”
And as conclusions of law the court found that plaintiff was entitled to the specific performance of the agreement on the part of the defendant, as prayed for in her complaint, and that she had a lien upon all the property conveyed by her to the defendant, by virtue of the said agreement, to the eitent of five thousand dollars, with interest thereon as provided in said notes, and that said property was subject to said lien.
A decree was accordingly entered, directing the defendant to specifically perform the agreement by paying the said notes within ten days, appointing a commissioner to sell one of the pieces of real property mentioned in the .agreement, and from the proceeds to pay the said indebtedness, etc., in case the defendant failed to obey the decree.
From that decree this appeal is prosecuted by the defendant on the judgment roll, without any statement or bill of exceptions; and the only question is, Did the-court err in overruling the demurrer?
It is claimed for appellant that the action was simply one for the enforcement of the specific performance of a contract, and that the facts stated and found to be true do not show such a case
In our opinion, the-action was not alone one to enforce specific performance. It also involved .tbe foreclosure of a lien; and of such actions courts of equity always entertain jurisdiction.
By the terms of the agreement, appellant assumed the payment of the notes to the Anglo-Californian Bank, and when he did so, be, as between himself and the estate, became the principal debtor, and the estate a surety. (1 Jones on Mortgages, sec. 741; Hopkins v. Warner, 109 Cal. 133; Tulare County Bank v. Madden, 109 Cal. 312.) And respondent was authorized to bring an action to enforce the payment without first making payment herself. (1 Jones on Mortgages, sec. 769; Abell v. Coons, 7 Cal. 105; 16 Am. Dec. 229.)
Did the agreement create a lien which could be enforced? A lien is a charge imposed upon specific property, and it may be created by contract of tbe parties or by operation of law. (Civ. Code, secs. 2872, 2881.) Tbe provision of tbe agreement was: “And the said property so to be conveyed, as is hereinabove set forth, is to be chargeable only with the debts, etc., excepting an indebtedness due to the Anglo-Californian Bank,” etc.
This language, we think, must be construed to mean that the parties understood and agreed that the said indebtedness to the bank should be a charge or lien upon the property to be conveyed. And it was not rendered ineffectual by the fact that appellant had not yet acquired the property. “An agreement may be made to create a lien upon property not yet acquired by the party agreeing to give the lien, or not yet in existence. In such ease the lien agreed for attaches from the time when the party agreeing to give it acquires an interest in the thing, to the extent of such interest.” (Civ. Code, sec. 2883.)
The first ground of demurrer cannot therefore be sustained.
The objection that the plaintiff had not legal capacity to sue is rested upon the theory that the complaint contained no sufficient allegation of her appointment as administratrix of the estate of William Kreling, deceased. The allegation was, that on a day named, plaintiff, “by order and decree of this court, was duly appointed administratrix of the estate of said William Krel-
The objection that there was a nonjoinder of parties defendant cannot be sustained. The defendant was severally liable, and it was not necessary to join others,though they might also be liable. (Code Civ. Proe., sec. 383.) Besides, the demurrer does not specify who else should have been joined or in what the non-joinder consists. But such specification was necessary. (Code Civ. Proc., sec. 431; O’Callaghan v. Bode, 84 Cal. 495.)
Appellant cannot complain that by the decree he is permitted to discharge his obligation by paying off the indebtedness to the bank before a sale of his property is had. In that respect he is certainly not prejudiced by the decree. Nor can he complain that the money is to be paid to the bank, and not to respondent for the use of the bank. Nor do we see how he can be heard to complain that one of the parcels of land only was specifically designated to be sold. Non constat but that the land ordered sold will be amply sufficient to satisfy the decree; and, if not, appellant will not be injured, for he is personally liable for the whole indebtedness.
Objection is made that the court had no authority to appoint a commissioner to sell the property, but, so far as we can discover from the record, it was justified in doing so, under the authority conferred by section 187 of the Code of Civil Procedure, and in conformity with the provisions of section 726 of the Code of Civil Procedure.
For the reasons given in the foregoing opinion the judgment is affirmed.