California Title Insurance & Trust Co. v. Miller

This is an appeal by plaintiff from a judgment in favor of defendants, and comes here upon the judgment-roll.

On April 15, 1896, Edwin A. McDonald executed a mortgage on real estate to Thomas W. Sweeny to secure the payment of his promissory note to Sweeny, payable April 15, 1897. On April 27, 1896, Edwin A. McDonald, the mortgagor, for love and affection, deeded the mortgaged property to his mother, Letitia McDonald, one of the defendants. The deed was in terms made subject to the mortgage, and was properly acknowledged and duly recorded May 4, 1896. McDonald, the mortgagor, died March 18, 1898, but there was no administration on his estate until March 27, 1901, when letters of administration were issued to P. J. Muller, one of the defendants. Sweeny, the mortgagee, died January 24, 1900, and on- February 9, 1900, letters testamentary were issued to the plaintiff. This action to foreclose the mortgage was commenced against the administrator of the deceased mortgagor and the grantee of the mortgagor May 29, 1901, four years and six weeks after the note became due, and more than five years after the deed to Mrs. McDonald had been made and recorded, but within about two months…