The herald., 1897-03-20
A MINORS INTERESTS
Some Nice and New Points Of
Law Raised
A VERY COMPLICATED CASE
Judge Aliens Judgement In the 0rnelas
Garcia Case
The Rights Of Guardian and 1lnor Defined.
Findings and Judgement Ordered
for the Plaintiff
A VERY COMPLICATED cAsI

| The case was exceptional. in that GER
| tain legal points were raised that are
somewhat new. Technically the action
was to set aside a mortgage and fore
close such mortgage.
| The facts in the case were somewhat
complicated. In August. 1889. defendant
Ornelas was the duly appointed guard
ian of plaintiff Plaintiff was, at that
date, entitled as heir at law of one AL
varado, to have distributed to her about
| $4,000. Among the assets of the estate
of Alvarado was note and mortgag ge
due from defendant Garcia. Defend
ant Ornelas, as such guardian, agreed
with the executors of the Alvarado es-
tate to accept on behalf of his ward, a
rote and mortgage of Garcia for S25o0,
to be given in lieu of such note and
mortgage held by the estate, the re-
mainder OF such distributive share to
be paid to him in cash. Pursuant to
this agreement In August of 1889 the de-
fendant Garcia executed to defendant
Ornelas his note for s2500, payable to Or
nelas individually. and executed to him
a mortgage upon the premises described
in the complaint, but which mortgage
stipulated that the money secured there
by was the money and'property of plain
tiff, a minor. This mortgage was duly
entered of record. Contemporaneously
with this, Ornelas, guardian, upon the
payment to him of the excess due his
ward above S2500 executed to the execu-
tors of Alvarado a receipt for the dis
tributive share of said ward. This note.
given by Garcia to Ornelas was due in
one year, and drew interest at the rate
OF ia per cent per month. Before the
maturity OF this note Garcia sold the
mortgaged premises to Ornelas, the
A-tc sf,D ~
of the consideration, assumed the pay
ment of the Sote so held by him az guar
dian. Afterwards. in March of 1892
by virtue of certain executions issued In
actions then pending against Ornelas, all
interest of Ornelas. under the purchase
from Garcia, was sold, and two certain
sheriff's certificates of sale issued, which
said certificates of sale were assigned
to the wife of defendant Ornelas, the
husband furnishing the money in one
instance. there being no testimony as
to who furnished the money in the other.
Defendant Ornelas remained in pos
session OF the premises until March of
1898 when he sold the premises to de-
fendant Martin for $4,000. Prior to the
transfer under this last sale a certificate
OF title was delivered by Ornelas to Mar
tin, which showed the existence OF this
mortgage and the outstanding certifi-
&C tes OF sale. together with certain de-
linquent tax sales of the premises. Or
relas thereupon agreed with Martin
that he would cause an order of court
to be made in the matter of the guard
ianship, authorizing him, as such guard
ian. to release the mortgage given by
Garcia to him. and In lieu thereof ac-
cept from his wife a mortgage for $500
upon her separate estate. Ornelas, with
out procuring ary order of court, and
without causing any other secur-
ity to be given in lieu. exc
cuted and acknowledged for record re-
lease of the Garcia mortgage. This he
delivered to defendant Martin. who
thereupon paid out to the individual
creditors of the guardian the agreed
consideration price. except small sum
paid to the guardian in cash, and ex-
cept about a hundred dollars applied In
satisfaction of the tax liens against the
property.
Martin" says Judge Allen In his opin-
ion, when he made the purchase, knew
that the mortgage and note were the
property of the child; that 1t WAS unpaid
that Ornelas, the guardian, was insol-
vent; that the premises so contracted
to be purchased by him comprised all
OF the mortgage security for said note:
that the consideration price was to be
and was applied to the personal use of
the guardian and his wife, and that no
part lHtTeOI WAS 10 DC OT was ustQ ltT
the benefit of the ward except the hund-
red dollars necessary for payment and
discharge of the tax liens He knew that
the note and mortgage belonged to the
plaintiff, and testified that he paid the
$4,000 to the guardian for the release OF
this mortgage, and that he dealt with
Ornelas as guardian. The amount due
plaintiff on the Garcia note and mort
gage on March 8, 1898, was S4199.42.
sAffar ba ~ " cf "a G Q10cad with
Martin, the wife of the guardian did
execute to the child a mortgage for
S2500 drawing interest at per cent
per annum, upon her separate estate,
which was subordinate, however, to an
other mortgage of about $1,000, the two
mortgages aggregating more than the
fair market value of the property mort
gagged. But this second mortgage execu-
ted by the wife of the guardian, before
the commencement OF this suit. was al
so released by the guardian and a pre-
tended release put on record, signed
by the child. without any consideration
passing to the child and the mortgaged
premises sold to other parties.
Martin, before he paid the money.
was advised by the company Issuing the
certificate of title that upon the record
of a deed to him by Ornelas, and the
record Of the release OF mortgage exc
cuted by the guardian az first herein
stated. he would take the title free Of
iDcumbrance on account of said mort
gage made by Garcia, and issued a cer-
tifcate OF title to him to that effect.
Martin, when he paid the money to the
creditors of the guardian and his wife.
and when he accepted the release, so
made without consideration, believed
that such payments relieved him from
any liability, and that the guardian had
authority to release the mortgage, and
that he had obtained an order
Of court authorizing him to release the
mortgage. and there was no collusive
agreement between Martin and the
guardian in terms by which the child
was to be defrauded. The sum OF $4,000,
paid fer the mortgaged premises. was
the fair market value of II at the time.
Martin, however since such purchase
has made valuable improvements there
on"
Under the Issues and from these
facts" proceeds the court, ut Is to be
Is plaintin entitled to the
relief prayed for In her complaint?
I'VE are first led to inquire as to the
authority of Ornelas to execute this re-
lease. 1t Will be observed that Ornelas
was at all times from the maturity Of
The note until the transfer to Martin the
,wner of the legal title to the mortgaged
premises, Notwithstanding the issuance
of the sheriff's certificate of sale This
certificate of sale, If actually held by
the wife as her separate estate, at most
but an equitable title, which
would only ripen into legal title by the
Of a sheriffs deed, which was