Summary
In Brown v. Mann, 71 Cal. 192, it appears that Charles Brown, while administrator of Abel Mann, held a mortgage on the land of his intestate, and, for the mere purpose of having it foreclosed, he assigned it to his brother Adolphus, who commenced an action for that purpose, making Charles Brown, as administrator of Mann, a party defendant.
Summary of this case from Byrne v. ByrneOpinion
Department One
Hearing in Bank denied.
Appeal from a judgment of the Superior Court of Santa Cruz County, from an order refusing to vacate the judgment, and from an order refusing a new trial.
COUNSEL:
W. D. Storey, and J. H. Logan, for Appellant.
C. B. Younger, J. A. Barham, F. Adams, and A. Craig, for Respondents.
JUDGES: Myrick, J. McKinstry, J., and Ross, J., concurred.
OPINION
MYRICK, Judge
Foreclosure. The note and mortgage were dated May 4, 1870, payable in one year, to wit, May 4, 1871. The proceedings had after the transfer of the note and mortgage by plaintiff (Charles Brown) to Adolphus Brown, with the suit thereon, must be disregarded, because Charles Brown, [12 P. 52] being the administrator of the estate of Abel Mann, could not, under the name of Adolphus Brown, have an action for his own benefit against himself as administrator to foreclose the mortgage. He had ample means in other ways to obtain the benefit of his security. Not until he ceased to be administrator and was substituted as plaintiff, which was after May 4, 1875, had he, Charles Brown, the plaintiff herein, commenced any proper action to foreclose the mortgage. At that time more than four years had elapsed after the note came due, and the action was barred.
In this view the balance of the case, and the points and arguments presented on either side, are quite immaterial.
Judgment and order affirmed.