Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1898-07-26

same Tune, 70 secure the payment of the
same, they also executed to Hardin and
Rogers rs such executors a MORTGAGE on
the 5 me land and premises mortgaeed
As aforesaid to Carter. which WAS duly
recorded i'll the Recorders office of said
Humboldt County, that in said mort
gage, given to Hardin and Rogers. are re-
cited, the facts of said Indebtedness 10
carter, the execution to him of sal. note
and mortgage, the death of Carter, teStatp.
the prObating of his last will and testa-
niont, and the issuing of letters testa-
mentary to sail Hardin and Rogers by
the Superior Court of said Sonoma Coun-
": that Hardin and Rogers, as such ex-
"rUtors, are the owners and holders of
sol note and mortgage for the benefit OF
fno NIduW ,iitU laughter of said deceased,
that Ed. Vi. EmmOns is owing the
same and the same might ne barred hv
the statute of limitations on the tn dav
OF March, 1898. that said Ed an. = t1bie
tmnons desire an extension of :imn for
the payment of the same and said Har-
tin and Rogers are willing to grant such
extension. and 1t %reCiteS, tO-Wit: Nov,
then, in consideration of the premises
ana OF such request for further time. and
with the distinct agreement that the lien
OF the aforesaid mortgage, is and shall be
continued, and not in any way waived in
favor of any one. and that said debt of
S-5O0nO shall be kept alive, the said Ed NJ.
E1nmons and his wife do hereby grant
ami mortgage to said James \. Hardin
ana j. T. Rogers. is executors aforesaid"
etc.
Between the dates Of thc execution OF
said pronj>-orv n0tcSand mortgages and
recording Of sid mortgages. to-wit: on
the 9Th day of >~eptctnher, Is4D. salt EiM
%fInlnonS executed his certain promi~sory
note II 9. w. Chesley & 60. of Sacrament
to, California for the sum Of SlI7O65. pay
able ON or before the LIST day of Septem-
her, lN"I, and to secure thcpayment there
Of he executed. acknowledged and deliv-
cred to @. W. ChesIey 4 Co.. MORTGAGE
on tn" S''0e real estate embraced in the
~ '" mortgages above referred to.
amt ,m - ne WAS duly recorded. on the
| day OF is execution. in stid Oil e of said
County Recorder OF Humboldt County,:
+ that'1r said note aud mortgage remain
wholly unpaid: that the defendant L. FL
| ku~ IL the duly appointed. qualified and
| acting trustee of the firm OF C.. w.
g., thc>.oF 4 Co. and has been such trus-
l t2e ~'Hf-- January LIST. 1921, and as such
trustee, With tnlI power in the promises
= il III. n>Nuer and holder Of said note and
I mortgage: Defendant, Elkus demurred
4 to the complaint on the ground. substan-
+ TALLY. among others, hat the plaintiffs
= have not legal capacity to sue for the rea-
l son that they are foreign executors OF the
[ last will and testament of Josiah w. Car
I ter, deceased. and have not been appoint
ed ~ such executors in this State. The
court oVerrulei the demurrer. ruling that
e while it is generally true that a foreign
executor cannot in his representative ca
g pacity maintain an action to recover
; property of his ~testate, this rule does not
apply If he sues in his own right although
the right be derived under a foreign will.
especially when he seeks to recover on a
; contract not made with the testate but
+ with the plaintiff as executor"
5 The overruling of said demurrer is as
1 signed as error. The question whether
= the court erred in overriding defendants
g demurrer taken on the ground of the
lucapacity of plaintiffs to sue, cannot be
considered on this appeal for the reason
that the defendant did not rest upon his
demurrer and allow judgment to be en-
, tered against him thereon. After his de
1 murrer was overruled he filed an answer
. raising issues of fact and thereby waived
: his right to rely upon his demurrer upon
= issue of law, as to the alleged ~incapacitv
= of plaintiffs to sue.
I The general rule seems to be well set
= tied, as stated by Bliss in his work on
Code Pleading Sec. 40 that, if the de
murrant wishes to take ADVANTAGE of anv
. supposed error in o~verruling the demur-
rer he must let final judgment be entered
. upon it, for if he shall answer, after such
+ ruling, he valves any objection to it, ex-
,cept the two radical defects"
y donkey VS.. Wells, is New. 2-l, and ca
ses there cited; Hammersmith VS.. Avery
Is Nev- 225; Gardner VS.. Gardner. % New.
$ 2o7; Hardy VS.. Swigert, 53 Pac. Rep. $50
= and eases cited.)
PRIORITY OF LIEN. The Question
$ of the priority of lien was raised in the
I trial court and is presented on his APP
: peal. The appellant contends, in effect,
that the taking of the note and mortgage
1 by the plaintiffs from Ed and Libbie EN-
r mons gave priority to the mortgage exc
e cuted by Ed Emmons to G. W.. ChesIev &
+ Co. 1t appear that the Chesley mort
l gage was given and recorded before the
f execution Of the plaintiffs said mortgage