The record-union., 1891-01-14
SUPREME COURT DECISIONS.
Filled January 8. 1891.

SUPREME COURT DECISIONS.
Filled January 3, 1911
Appeal from Superior Court, Fresno
County-M. K. Harris Judge.
For appellant, Jarboe Harrison & Goodfel-
low.
For respondent, Thompson & Thompson.
DEPARTMENT TWO.
THOMAS TYNER, Respondent
VS.. NJ 1ooc,
THE &c LAND & WATER Co., NO io'9ol.
Appellant.
TEH COURT.
This case is similar to and must be deter
mined on the authority of o. e. Abbott against
the same defendant (No. 13, $500, and in the
same way.
Judgment affirmed
Filled January 3, 1901
Appeal from Superior Court, Fresno
County-M. X. Harris, Judge.
For appellant, Jarboe, Harrison Goodfel
For respondent, Thompson & Thompson.
DEPARTMENT TWO.
sHTPE, Respondent,
VS.. No 70 200
THE 7e LAND & WATER Co, NO. i9'9e2.
Appellant
THE COURT.
This case is similar TO aud must be deter
mined on the authority of .. IT, y bbott against
the same defendant (No. $3.50, and il the
same way.
Judgment affirmed
Filled January 3, 1911
Appeal from Superior Court, Fresno
County-M. X. Harris, Judge.
For appellant, Jarboe, Harrison & Goodfel
FOR respondent, Thompson & Thompson
DEPARTMENT TWO.
s. B. ABBOTT, Respondent,
VS.. NJ 10 GOO
THE 76 LAND & WATER Co., No. Ao'Soo'
Appellant.
THE COURT.
This case is similar TO and must be deter
mined on the authority of o. L.. Abbott against
the same defendent NO. 13, $50, and in the
same way.
Judgment affirmed.
Filled January 4, 1911
Appeal from the Superior Court of Fresno
Lounty-Hon. j. B. Campbell, Judge.
For Appellant, Geo. a. Nourse.
For Respondent, w. +. Goad and Arthur
Rogers.
DEPARTMENT TWO.
MONTGOMERY Respondent,
VS.. No. OIL.
SAYRE, Executor, Appellant.
This action was on n promissory note exc
cuted by defendants testator to the plaintiff
1t was given to secure the payment of the not,
of the Pioneer Gold Mining COMPANY to the
plaintiff for $4,000. This last note was in
dorsed by William s. Chapman 1t was fur
ther secured by the pledge of all the shares o
the capital stock of the Pioneer G.. NJ. Com
pany, except thirty shares thereof. and also by
a mortgage on the Pioneer Mine, then owned
by the company above named, executed by
said company.
The above facts appear and are not disputed
1t further appears that there was a prio
mortgage executed by the company on tn,
Pioneer Mine, on which Il suit for foreclosur,
was brought, and in this suit the plaintiff
who was one of the defendants therein, filed ;
cross-complaint, asking that his mortgage b.
foreclosed. This was done and an order o
sale issued directing the proceeds OF the sal,
of the mine under the decree 10 be applied
first to the payment of the prior mortgage
and the remainder upon the plaintiffs mort
gage
At the sale under this decree the plaintiff
became the purchaser OF the mortgaged prem
1ses for $4,000, of which S1o,415 was pait
to the owners of the prior mortgage, ana til,
remainder, less costs of sale, was applied o,
the second debt of plaintiff, adjUdged then L
amount to S69,426 so. The Sheriff's returI
OF sale showed deficiency due the SccoIC
debt to plaintiff, amounting 10 Sol ,534 Is.
The complaint shows payments on the mort
gage debt to plaintiff, including the payHen
made of q portion of the funds of the s2lt
above mentioned, amounting to S9S,3So.S2
Judgment for this deficiency was C;ockctet
against the mortgagor company and w. )
Chapman.
on this Judgment payments We're made be
fore the commencement OF this action, leaving
still due, averred in this complaint, th,
sum of S34 ,551 20.
Plaintiff asks Judgment on the note suet
ing to S17, ,12O so.
The claim of plaintiff on the note sued OF
was regularly presented to the defendants eX
ecutor, Who rejected it.
This action was brought on the note to re
cover the amount above mentioned, 10 b,
paid by defendant in due course OF admins
tration.
1t is set up in the answer that the $4,000
note had been fully paid, and denies that any
sum remains due and unpaid on it.
Other allegations of the complaint were de
MED. These need not be fully stated.
As an affirmative defense, the defendant SCI
up by his answer the following:
THAT transcript OF the docket of the de
ficiency Judgment docketed againt the'Pioneel
Mining Company and w. $. Chapman dht
maker and indorser of the mortgage note) was
iiled with the Recorder of Fresno County IN
November, 1887, and thus the Judgment be
came lien upon all the real property of said
w. s. Chapman in said Fresno County.
"2. That at and before the filing of said
Transcript Chapman owned certain real prop
erty described situated in said county, which
was held in the name of W. L. Goad, trustee
Tor plaintiH Montgomery, for further security
for debts due Montgomery from Chapman.
''3. That the said lien o. said judgment was
never enforced against said property OF said
Chapman, but that said Montgomery, Chap
man & Goad, after the death of said a. l.
Sayre sold and conveyed by deed to Thomas
Z. Hughes all said real property for S35, 900
paid by Hughes to Montgomery, which was
received by Montgomery payment in full
iof every debt and obligation due from Chap
man to him, except the judgment aforesaid
1
4nd that Montgomery thereupon released SAID
land from the,lien of said judgment.
~. That said real estate was then worth
S140,000, and if sold at its real value would
have realized enough TO pay all debts due
Montgomery from Chapman, including saio
deficiency judgment.
IS. That said Montgomery released said
lland from the lien of said Judgment, and re
leased said Chapman from the obligation o
said judgment without the consent of defend
anti
The case was tried by q iury on the oSth o-
April, 1889, who rendered the following yer
dict:
Question What was the value Nav 3
1SSS, of the following lands, viz: The south
half of section 24, section 25, the southeast
quarter of section 26 and section 3d. all in
township SOUTH of range z east, from the
Mount Diablo base and meridian; also. sec
ton i, and the west half of section Is, in
township II south, of range II east, from
said base and meridian?
'Answer-S13 SO, 500.
&c. c. HARRIS, Foreman
"Question 2-Did the plaintiff A. Montgom.