Thomas v. Parker

97 Cal. 456 | Cal. | 1893

The Court.

This action was brought to foreclose a mortgage executed in favor of the plaintiff by the administrator of Mary E. Parker, deceased. The purpose for which the mortgage was given seems to have been to borrow money with which to pay certain debts .of the decedent contracted in her lifetime, and to pay expenses of administration, family allowance, etc. The defendants are the husband, who is also the administrator of Mrs. Parker’s estate, and her minor children. Demurrers were filed to the complaint and overruled, the defendants then answered the complaint, and upon evidence given in the premises, findings being waived, the trial court entered a decree of foreclosure in accordance with the prayer of the complaint. From the judgment thus made this appeal is taken on the judgment roll and bill of exceptions.

One of the grounds upon which a reversal of the judgment is demanded is, that the petition which was filed by the administrator when seeking to obtain the order of the probate court to mortgage the real estate of his decedent was insufficient, and did not therefore give that court jurisdiction to make the order. The law under which this proceeding can be had is to be found in the Code of Civil Procedure, sections 1577 and 1578. A critical examination of the petition and of the language of the statute makes it clear that the petition is sufficient.

The further contention of appellants, that the mortgage sought to be foreclosed was not executed by J. L. Parker in his character as administrator of the estate of Mary E. Parker, and is therefore only a personal mortgage of said Parker, is clearly without merit. The mortgage, after referring to the order of the superior court authorizing its execution, proceeds to recite: “Mow, therefore, the said mortgagor, pursuant to the order last aforesaid, .... mortgages to the mortgagee,” etc. This, with the other recitals, is sufficient to show that the mortgage was intended as a mortgage of property belonging to the estate of which the mortgagor was administrator, and was executed by him in his character as administrator, in pursuance of law and the order of the superior court directing its execution.

It is further argued that the order to show cause required by the second subdivision of section 1578 of the Code of Civil Procedure is insufficient, because it docs not comply with the provisions of that subdivision, and for the further reason “ that the same does not direct or require the personal service thereof to be made upon the infant defendants herein and minor heirs in said proceedings, it appearing therein that each and all of them were under the age of fourteen years.” The court refused, on the objection of the defendants, to rule out the order above adverted to and offered in evidence. The objection as made is general, with the exception of the matter last specified, with reference to the want of personal service on the minors, and therefore the trial court had only that matter called to its attention in a proper way. In relation to this objection, it is sufficient to say that subdivision 8 of section 1578 of the Code of Civil Procedure, under which the order to show cause was made, provides that service of such order may be made personally, “ or it may be published for five successive weeks in a newspaper of general circulation published in the county.” And the order was so published, and in accordance with the directions contained in such order. There is therefore nothing in the exception taken. The appellant further claims that in order to validate the proceedings it was necessary for a guardian ad litem to be appointed to represent the minors. The act under which this proceeding is taken does not require any guardian ad litem to be appointed, and provides that if the court has jurisdiction to administer the estate of the decedent, about which there is no question here, it has jurisdiction to make the order for the mortgage. And it further provides that “ no irregularity in the proceedings shall impair or invalidate the same, or the mortgage given in pursuance'thereof,” etc. (Code Civ. Proc., sec. 1578, subd. 6.) The non-appointment of the guardian ad litem is an irregularity. (Emeric v. Alvarado, 64 Cal. 600.) Hence there is no merit in the point last made.

Judgment affirmed.