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provided for. There was also an attempt to proceeds be applied to the payment of the regulate the rights of one Kate A. Burke, debt due to plaintiffs, and that a judgment who held a mortgage on a portion of the for any deficiency be docketed against the property, but was not a party to the agree- parties of the first part named in said instrument. Provision was made for the recon- ment. From the judgment so entered, the veyance of the property in case of payment, Krohns, who appeared by motion and defor its sale and the execution of deeds in murrer, appeal. case of default, for the application of pro- Appellants base their demand for reversal ceeds of any sale, and the return of any sur- on the single ground that an action to foreplus to the parties of the first part. The close a trust deed cannot be maintained. If third parties were specially authorized to it be conceded that Kraft v. Bryan, 140 Cal. pay, without notice, and according to their 80, 73 Pac. 745, and Koch v. Briggs, 14 Cal. best judgment, all liens and incumbrances

256, 73 Am. Dec. 651, cited in support of this on the property, except taxes, and, in their contention, go to the extent of holding that discretion, to contest the payment of the an action to foreclose a trust deed can never same, and prosecute and defend suits to pro- be maintained under any state of facts, still tect the title to the property. All payments we think that these authorities, and the legal and expenditures thus made were to be principles upon which they rest, cannot be deemed secured by the instrument above

applied here. mentioned. The granting clause in the in- To begin with, the instrument under construment reads as follows: "That said par. sideration is something more than a trust ties of the first part, in consideration of the deed. It defines the rights of the first and aforesaid indebtedness to the parties of the third parties in detail, and creates a distinct third part, and of one dollar to them in hand and continuing obligation on the part of the paid by the parties of the second part, the former to reimburse the latter for all sums receipt whereof is hereby acknowledged, and expended, as sureties on the official bond of for the purpose of securing the payment of L. W. Krohn or as a result of their suretysaid promissory note, and of any sum or ship. It allows the third parties to pay off sums of money with interest thereon, that liens and incumbrances, and defend or prosemay be paid or advanced by, or may other- cute suits, to protect the title to the property, wise be due to the parties of the third part according to their own judgment, without under the provisions of this instrument, do consulting anybody, or rendering any account by these presents grant, bargain, sell, con- of disbursements, made in this behalf, to the vey and confirm unto the said party of the trustee. The trustee obligated himself, if second part, and to its successors and as- possible, to obtain notes, secured by mortsigns, the pieces and parcels of land situate

gage, from other sureties, which notes, if in the county of Madera, state of California, obtained, were to be held in trust for plaindescribed as follows, to wit."

tiffs, all payments thereon to be applied in The parties of the first part having failed

payment of the trust note. The conveyance to pay the whole or any part of the indebted- expressly included certain notes and mort. ness evidenced by the note, according to the

gages held by the Krohns against various terms thereof, the plaintiffs, in writing, de

parties, and all payments made to the trustee manded that the trustee proceed to sell the thereon were likewise to be applied on the premises as provided in the instrument in

trust note. We cannot imagine how the question, and the second party, in writing, rights and obligations of the respective parexpressly refused to comply with such de- ties to such an instrument could be ascermand. Thereupon this action was brought | tained, adjusted, and conserved without reby plaintiffs against the first and second par- sort to an action of some kind in some juties named in the instrument, and numerous dicial form. Indeed, an accounting by the other parties who claimed some interest in trustee and the third parties, for sums rethe premises. Many of the defendants failed ceived by the former or expended by the latto appear, and their default was duly en- ter, was indispensable, and a sale might have tered, but L. W., W. J., H. A., J. J., F. W., been enjoined until such accounting was had. Louisa, Dora, Theckla, and John C. Krohn More v. Calkins, 85 Cal. 188, 24 Pac. 729. appeared, and, by motion to strike out the The instrument on its face shows that doubt allegations of the complaint and demurrer, and uncertainty would exist in the absence raised the point that the court had no juris- of such an accounting, and that complicadiction of the parties or of the subject-mat- | tions, involving the power of the trustee to ter of the action, and the further point that sell the land, must result from its very terms, the complaint did not state facts sufficient if notes and mortgages from the other sureto constitute a cause of action. The motion ties were obtained, and the amounts due on and demurrer were overruled, and the court the various mortgages assigned by the instruentered judgment, decreeing that the sum ment were paid or unpaid. Under these of $10,221.60 was due to plaintiffs upon the circumstances a proceeding in equity was debt and deed of trust set forth in the com- necessary to a satisfactory adjustment of the plaint and directing that the property de- matters involved. Waiving these considerascribed in said deed of trust be sold, and the tions, however, this case cannot be classed

or treated as an action to foreclose a trust of a debt are an anomaly in our system, and deed. Such an action could only be brought are admittedly inconsistent with the policy by the trustee, while this action is brought by of this state in regard to mortgages." This the beneficiaries against trusters, trustee, being the case, it would indeed be a harsh and others. The trustee having refused to rule that would exclude any of the parties. comply with the demand that he execute the to such an instrument from the courts; trust, the beneficiaries were forced to appeal hence, "it has only been held that such deeds to a court of equity, and in doing so they, are not mortgages which require foreclosure.” very properly laid all of the facts before Hodgkins r. Wright, supra. But if it be adthe court, and asked for the "usual decree or mitted that the rule absolutely forbids foresuch decree or order as the court may see closure of trust deeds, the mere use of the fit to make." The court, under such circum- formula "barred and foreclosed of and from stances, would, upon well-established princi- all equity of redemption," in the prayer of ples, take jurisdiction of the whole subject- the complaint and judgment, does not conmatter of litigation, and also decree a sale clusively or otherwise establish the nature of the real estate proper. Kraft v. De For

.

of the action nor impair the validity of the est, 53 Cal. 659; Am. & Eng. Ency. of Law, judgment. Such formula cannot injure any vol. 28, p. 839; Washburn on Real Property, of the parties, and the rule "superfluity vol. 2. p. 523; Jones on Mortgages, $ 1773. ,

does not vitiate” must be applied. “The Equity will not permit litigation by piece- lar regards form less than substance," and meal. but will determine the whole contro- looking at the substantial rights of the parversy where all the facts and parties are be- ties às disclosed by the instrument, and the fore it. Watson v. Sutro, 86 Cal. 529, 24 Pac. subsequent conduct of the trustee, we think 172, 25 Pac. 64; Booker v. Aitken, 140 Cal. the judgment should be, and it is hereby, 473. 74 Pac. 11; More V. Calkins, supra. affirmeil. The granting clause clearly shows that the conveyance was made as security only, and it We opeur: CHIPMAN, P. J.; BUCis well settled in this state that trust deeds

KLES. J. in the nature of a mortgage convey only a defeasible estate having none of the incidents

(4 Cal. App. 114) of ownership except that the trustees are

ELIZALDE v. MURPHY et al. (leemed to have such an estate as will en

(Court of Appeal. Second District, California. able them to convey. Sacramento Bank v.

July 18, 1906.) Alcorn, 121 Cal. 383, 53 Pac. 813. They are

,

1. ADMINISTRATORS-ADVANCEMENT TO WIDOW in effect mortgages with power to sell. Hodg. --ACCOUST. kins v. Wright. 127 Cal. 692, 60 Pac. 131:

Where an administrator anticipates dis

tribution and advanced funds to the widow, Pomeroj. Eq. Jur. 995. Hence, there was

such advancement was not a proper subject no reason in law or logic why the court for inclusion in the administrator's final account, could not act directly, without forcing the

he being only entitled to reimbursement from

the widow's distributive share on final distributrustee to sell and convey the premises.

tion. Under the circumstances, the plaintiffs could

[Ed. Note.For cases in point. see vol. 22, inaintain an action to have the accounts and Cent. Dig. Executors and Administrators, 83

1219-1228. 2007.] respective rights of the parties adjusted and the property sold, and the court could order 2. SAME-ATTORNEY'S FEES-EXPENSES-Exthe sale to be made by its own commissioner.

TRAORDINARY SERVICES.

That an administrator made no claim in More V. Calkins, 85 Cal. 190, 24 Pac. 729.

prior accounts for an allowance of attorney's t'nder the terms of the instrument, the court fees, expenses, and for extraordinary services, could direct a judgment for any deficiency

did not constitute an absolute waiver thereof. to be entered in favor of the plaintiffs

[Ed. Yote.--For cases in point, see vol. 22,

Cent. Dig. Executors and Administrators, $ against the four trusters, and its powers as

2068.] a court of equity extended to a final adjust

3. SAME--BONDS-RIGITS OF SURETIES. ment of the rights of the parties, to the end In an action on an administrator's bond, that further litigation might be avoided. his sureties are not entitled to credit for at

torney's fees, expenses, and for extraordinary A trustee may always apply to a court of

services to which the administrator never made equity for aid or directions, and such courts

claim in the probate court, the sureties' right are likewise open to any of the other parties to subrogation with reference to such claims, when a dispute as to the existence, character,

it any, being enforceable only by petition in

the probate court. or terms of a trust arises. And where an ac

4. SAME-ADMINISTRATOR'S DUTY-EXTENT. counting is necessary or a question as to the The measure of an administrator's duty is amount due exists, or where a doubt arises to act with fidelity and with that degree of as to whether the instrument creating a lien

prudence and diligence which a man of ordinary

judgment would be expected to bestow on his is a mortgage or deed of trust, recourse to own affairs of a like nature. a court is the safest, if not the only, course [Ed. Vote.:-For cases in point, see vol. 22, to pursue. Banta v. Wise, 135 Cal. 279, 67

Cent. Dig. Executors and Administrators, $8

360, 397.] Pac. 129; Godfrey v. Munroe, 101 Cal. 227, 35 Pac. 761; More v. Calkins, 85 Cal. 188, 24

5. SAME-COLLECTION OF ASSETS.

Where the maker of a note received by an Pac. 729. "Trust deeds to secure payment administrator was at all times insolvent, and

the administrator placed the note in the bands of a collector without being able to realize anything thereon, he was not guilty of negligence because of his mere failure to sue thereon.

[Ed. Note. For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, $ 394.)

Appeal from Superior Court, Santa Barbara County; B. T. Williams, Judge pro tem,

Action by Elisa P. Elizalde, as administratrix of the estate of Marcos A. Elizalde, de ceased, against P. W. Murphy and others. From a judgment for plaintiff for less than the relief demanded, she appeals. Reversed.

McD. R. Venable and B. F. Thomas, for appellant. W. A. Richardson, W. H. Spencer, and Wm. Shipsey, for respondents.

ALLEN, J. Action upon an administrator's bond. Judgment for plaintiff for a lesser amount than claimed in the complaint. Plaintiff appeals from the order denying a new trial.

It is made to appear in the record that one Graves was appointed administrator of the estate of Elizalde on the 20th day of January, 1894, and executed a bond at the date of such appointment, and certain subsequent. bonds, as required by the order of the court; that on May 28, 1898, said administrator filed his second annual account, which was duly allowed, from which it appears that on said date he held in his possession $5,133.50 belonging to said estate; that the administrator died July 15, 1900, without rendering any further account; that after the filing of his said account the administrator received $562 in addition. Upon a trial of this action, the court below found the administrator had received, and was chargeable with, $5,696, and credited him with certain payments not disputed, together with other payments the subject of controversy upon this appeal- one of $940 advanced to the widow as part of her distributive share, and $550 for expenses and attorney's fees to one Leme, and for expenses and extraordinary services of the administrator.

Appellant's contention is that these credits last mentioned were not proper matters to be credited by the court in this action, and no credit therefor should be allowed at the instance of the sureties. With this we agree. In so far as the advance to the widow is concerned, it was not even proper subject of the final account. Estate of Willey, 140 Cal. 240, 73 Pac. 998; Estate of Rose, 80 Cal. 179, 22 Pac. 86. The only rights of an administrator who anticipates the distribution to the widow or heirs and pays in advance of such distribution, is when distribution is ordered to have such payments retired therefrom and receive a credit on account thereof from the distributive share 50 to be charged. Estate of Willey, supra. It does not even appear that any sum will be due the widow upon final distribution; and It is not material what property may have

heretofore been distributed to her, against which the administrator in making the advancements made no claim. Whatever may be the rights of subrogation to which defendants are entitled, the same can only be worked out upon the final decree of distribution. We are of opinion, also, that the allowance of attorney's fees, expenses, and for extraordinary services are matters which can only be adjudicated in the probate court in the final or some subsequent account. The mere fact that the administrator made no such claim when filing his previous accounts should not be taken as an absolute waiver. But the reimbursement to which an administrator is entitled on account of such payments or such services is a right personal to himself, and one which he may waive; and until it is asserted, either by the administrator or by his personal representatives, in an account and upon a petition presented to the probate court, they are not proper subjects of adjudication, and were we to say that this right of the principal on the bond to assert the claim is one to which sureties might be subrogated, yet it must follow that such sureties would be restricted in the enforcement of such subrogated rights to the mode prescribed for their enforcement by the principal. In re Moore, 96 Cal. 526, 31 Pac. 584; In re Levinson, 108 Cal. 456, 41 Pac. 483, 42 Pac. 479. And matters which are the subject of account are exclusively within the jurisdiction of the probate court. Toland v. Earl, 129 Cal. 152, 61 Pac. 914, 79 Am. St. Rep. 100; Estate of Freud, 134 Cal. 336, 66 Pac. 476.

Further objection is made by appellant to the refusal of the court to charge the administrator with the inventoried amount of a note of one Dargie. The court found that there was no negligence upon the part of the administrator in his failure to realize upon this asset. "It is true that when an administrator receives a note, and the maker thereof is solvent, but afterwards becomes insolvent, the burden of proof is on him to show that with due diligence he could not have collected it.” In re Moore, 96 Cal. 526, 31 Pac. 584. The measure of an administrator's duty is to act with fidelity and with that degree of prudence and diligence which a man of ordinary judgment would be expected to be stow upon his own affairs of a like nature. In re Moore, supra. There is evidence in the record tending to show that, notwithstanding the return in the inventory, Dargie was at all times insolvent. There is evidence tending to show that the note was placed in the hands of a collector and that nothing could be realized thereon. This being true, were it even to be assumed that the taking of a new note with the insolvent wife as surety was not warranted, yet no loss upon the estate would be entailed. The mere failure to sue does not establish negligence. It is only the failure to proceed when a reasonable prospect of collection is apparent which should be said

to be negligence. There being evidence tend- | law. I would have no difficulty, therefore, ing to support the verdict of the trial court were the question a new one, in thus conthat there was no negligence upon the part of struing the provisions of the section. But the administrator, we are not inclined to dis- under the old law there was a similar proturb the same. We find no other errors in vision with reference to the probate court the record.

(Probate Act (St. 1850, p. 397, c. 129], $ 230); The order is reversed, and cause remanded and it was held, in effect, that the probate for further proceedings.

court did not have such authority, and that

the account of a deceased administrator could I concur: GRAY, P. J.

be settled only by a suit in the district court

sitting as a court of equity (Bush v. Lindsey, SMITH, J. (concurring). I concur in the 44 Cal. 121 ; Wetzler v. Fitch, 52 Cal. 638; order of reversal, and also in much of the Chaquette v. Ortet, 60 Cal. 594; In re Allgier, reasoning of the opinion of Mr. Justice Allen. 65 Cal. 228, 3 Pac. 819); and the rule has But the reversal should, I think, be placed

since been applied, in at least one case, to on the broader principle, established by the the superior court in the exercise of its prodecisions of the Supreme Court, that a suit

bate jurisdiction. Estate of Curtiss, 65 Cal. cannot be maintained against the sureties on 572, 4 Pac. 578. But with regard to the an administrator's bond until there has been question of jurisdiction, there is a manifest a settlement of his account, either in the difference between the old probate court and probate proceedings under section 1629 of the the superior court sitting in probate. The Code of Civil Procedure, or by a bill in equity

former had such jurisdiction only as was brought for that purpose. Graff v. Mesmer,

conferred upon it by the Legislature (Const. 52 Cal. 636; Chaquette v. Ortet, 60 Cal. 594; of 1819, art. 6, § 8), while under the present Weihe v. Statham, 67 Cal. 84, 7 Pac. 143;

Constitution the superior court has jurisdicReither v. Murdock, 135 Cal. 197, 67 Pac.

tion "of all matters of probate" (Const. art. 784; Cook v. Ceas, 143 Cal. 225, 77 Pac. 65.

0, $ 5); and it has also such equitable jurisIn such a bill brought against the administra- diction as may be necessary to the exercise tor the sureties may, perhaps, be joined of its proper functions. Burris v. Kennedy, (Chaquette v. Ortet, supra); and I can see 108 Cal. 331, 41 Pac. 458; Heydenfeldt v. Suno objection to this course. But in the pres

perior Court, 117 Cal. 318, 49 Pac. 210; Toent case the administratrix of the deceased land v. Earl, 129 Cal. 148, 61 Pac. 914, 79 Graves was not made a party; and, indeed, Am. St. Rep. 100; Estate of Freud, 131 Cal. the demand of the defendants by proper sup

673, 63 Pac. 1080, 82 Am. St. Rep. 407; More plemental pleadings to bring her in as a de- v. Vore, 133 Cal. 494, 65 Pac. 1014, 85 Am. fendant was denied by the court. This er- St. Rep. 166. It would seem, therefore, that, ror may be cured by a proper order requir

with this extensive jurisdiction, the court ing her to be brought in as a defendant (Code must have the power to require an accountCiv. Proc. § 389); but the question will still ing from the administrator of a deceased adremain whether the court will then have ju- ministrator, either under the provisions of risdiction of the case. This question, under

section 1629 and in the mode there prescribed, the existing Constitution and some of the or by virtue of its general constitutional juolder authorities, is not altogether clear. risdiction and in such mode as the necessity Generally speaking, the matter of accounts of the case may require; and that its jurisof administrators, like other matters of pro- diction in this regard should be held exclubate jurisdiction, belongs exclusively to the sive. I assume, therefore, upon the authorprobate court. Hope v. Jones, 24 Cal. 93; ity of the decisions cited, that it is within Gurnee v. Maloney, 38 Cal. 87, 88, 99 Am. Dec. the power of the court in the administration 352; Weihe v. Statham, 67 Cal. 84, 7 Pac. of an estate to adopt as the mode of procedure 143; Burris v. Kennedy, 108 Cal. 331, 41 Pac. the form of a bill in equity; and to this no 458. This is admittedly the case with re- objetion can be urged when the suit, as in gard to administrators generally; and by this case, is in the court charged with the the express provision of the law an admin- administration of the estate; but in such case, istrator whose authority has ceased, if he is the equity suit must be regarded as merely still alive, may be cited to account (Code Civ. ancillary to the administration and as a Proc. $ 1629), and I can see no reason to part of the proceedings therein. The court suppose that it was intended to exclude the

will, therefore, in the present case, upon makadministrator of a deceased administrator ing the proper parties, have as full jurisfrom the provisions of this section. The lan- diction to pass on all the questions presentguage of the section, in describing the case ed to it as it would have in an ordinary provided for, applies equally to a deceased proceeding in the matter of the estate. It administrator as to any other; and there is will, therefore, not only have jurisdiction of nothing in its provisions to indicate an in- the several questions relating to allowances tention not to include his administrator, ex- for extraordinary services, etc., but also to cept in the use of the word "he,” in the ex- the alleged payment of $940 to Mrs. Victoria pression "he may be cited,” etc. His case, I Elizalde, who for this purpose should be think, comes within the reason, and, there- made a party—as was demanded by the defore, presumably, within the intention of the fendants in the case below. As to this, the

action of the court should be in conformity

pointed by the board of supervisors of the

with the course pursued in the matter of the county of Santa Clara constable of that town

Estate of Moore, 96 Cal. 527, 530, 31 Pac. 584, the authority of which case has not been affected by the later decision in Estate of Willey, 140 Cal. 241, 73 Pac. 998. I am of the opinion, also, that the credit claimed by the defendants for administrator's fees should be passed upon, as well as every other question that may arise between the pending estate and the estate of the deceased administrator that could be determined in an ordinary proceeding for the settlement of an administrator's account.

(4 Cal. App. 169)

BERGEROW V. PARKER, Auditor. (Court of Appeal, First District, California.

July 24, 1906.) 1. PLEADING-APPLICATION FOR JUDGMENTAMENDMENT.

Plaintiff filed a verified complaint for mandamus against defendant, and defendant filed an unverified answer, whereupon plaintiff moved for judgment on the pleadings. Heid, that plantiff's motion was in the nature of a demurrer to the answer, and it appearing that the defect could be cbviated by amendment, it was within the court's discretion to deny plaintiff's motion and permit defendant to amend. 2. OFFICERS—DISQUALIFICATION-ARREST FOR FELONY.

Where a constable was arrested for a felony, but the charge was subsequently dismissed without any hearing, neither the arrest nor his incarceration operated as a disqualification so as to create a vacancy in his office. 3. SAME-STATUTES-CONSTRUCTION.

l'ol. Code, $ 996, subd. 7, provides that an office becomes vacant by the ceasing of the incumbent to discharge the duties of the office for a period of three consecutive months, except when prevented by sickness or when absent from the state by permission of the Legislature. Held, that such section contemplated a “voluntary” abandonment or nonuser of the office for three consecutive months, and that an involuntary failure on the part of an incumbent to perform the duties of his office, caused by his incarceration for a felony during the statutory period, did not operate as an abandonment of the office within such section. 4. SAME-RIGIIT TO SALARY.

Where plaintiff held the legal title to the office of constable of a town, he was entitled to receive the salary which' attached as an incident to the office.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Officers, 88 132-141.]

ship to fill a vacancy then and theretofore existing in said office, and on the same day qualified for said position by filing an approved bond and taking the oath of office as required by law, and entered upon the discharge of his duties as such constable. He was arrested July 13, 1900, upon a charge of murder, and was held and prosecuted upon said charge, and confined in the county jail at San Jose continuously from that date until July 26, 1902. On the last-named day, on motion of the district attorney of said county, the said charge was dismissed by the superior court, and the appellant was released from confinement, and immediately returned to Alviso township, and continuously resided there and performed the duties of constable of said township until August 16, 1902, on which day he ceased to be a resident of the county. He never resigned his position or voluntarily ceased the performance of any of the duties of his office, nor did the board of supervisors of the county, or any body with authority so to do, at any time between his appointment and August 16, 1902, declare said office vacant, or take any action therefor or for ousting him therefrom. The defendant is the auditor of the county of Santa Clara, and prior to the commencement of this action the appellant demanded of him that he draw a warrant in his favor upon the treasurer of the county for his salary as such constable at the rate of $25 a month from April 1, 1901, to August 15, 1902, as provided by the county government act of 1901, amounting to $412.50. Upon the refusal of the defendant to comply with his demand he applied to the superior court of said county for a writ of mandate, commanding him so to do. The application was submitted to the court upon an agreed statement of the foregoing facts, and the court found therefrom that the appellant ceased to be qualified to fill and discharge the duties of said office on the 15th day of July, 1900, and that the office became vacant on October 15, 1900, and on that day the plaintiff ceased to be such constable, and was not such constable at any time between April 1, 1901, and August 15, 1902, and held that he "was not and is not entitled to any compensation whatever as constable of said Alviso township for any period subsequent to October 15, 1900.” The appellant moved for a new trial, which was denied, and from this order the present appeal has been taken.

1. The complaint was verified, and the defendant filed an answer thereto without verifying the same. Thereafter the plaintiff, upon proper motion therefor, moved the court for judgment upon the pleadings as prayed for in his complaint, upon the ground that the answer on file constituted no defense to his cause of action. At the hearing of the motion the court denied the same, and granted the defendant leave to serve and file an amended answer, to which ruling the plaintiff

Appeal from Superior Court, Santa Clara County; M. H. IIyland, Judge.

Action for mandamus by Frederick Bergerow against W. F. Parker, as auditor of Santa Clara county. From a judgment for defendant, plaintiff appeals. Reversed.

B. A. Herrington and George W. Waldorf, for appellant. James H. Campbell, for respondent.

HARRISON, P. J. The appellant was on June 30, 1900, a resident of the township of Alviso, in the county of Santa Clara, and eligible to the position of constable of that township, and was on said day regularly ap

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