The record-union., 1898-06-18

| ers. 1t was a case of foreclosure of
mortgage, but many side issues of an
unusual character We're involved. The
decision is as follows:
| w. 5. Kendall, plaintiff, VS.. Frank
| Troi, FL. Wittenbrock, John Doe and
Richard Roe
| This action is brought to foreclose
a mortgage made by Frank Troi to the
| plaintiff on August %, 1892, to secure
the payment Of profnissOry note
dated August %, 1892, for twelve hun
dred and fifteen dollars and with inter-
est at 1 per cent. per month and future
| advances not exceeding three thousand
dollars. Under the clause authorizing
| future advances plaintiff claims to
have loaned the defendant, Frank Troi,
nine hundred and sixteen dollars and
ten cents on December L. 1892, and fif-
teen hundred and thirty-nine dollars
| and ninety-six cents on December 20,
| 1894, each of which advancements is
| evidenced by prornissory note made
on the date of such advancement and
! bearing interest at / per cent per
| month Defendant Henry Wittenbrock
| died before the coming on of the triaG
| OF the case, and the executrix of his
last will and testament, Eliza Witten-
| brock, has been substituted for him as
a defendant in this action, and she has
| filed an answer and cross complaint.
1t appears that on or about the 9th
| day Of October, 1887, the defendant,
Frank Troi, purchased of the estate
of w. H. Bailey, deceased, the south
| east quarter of section ten, and the
| southwest quarter Of section eleven,
1 ho41 -
| six east, M. D. B. and NJ, situated in
| Sacramento County, for six thousand
| five hundred dollars. Troi borrowed of
Wittenbrock four thousand six hun
| dred and fifty dollars, which was ap-
piled on the purchase price of the land,
and gave Wittenbrock a mortgage on
said land to secure the payment Of said
loan. On June 20, 1889, this mortgage,
not having been paid by Troi, and be-
ing about to expire by limitation, Troi
gave Wittenbrock new mortgage on
the same land for seven thousand dol
| lars, payable three years after date,
| with interest at 912 per cent per an
mum, which said mortgage was record
ed on June %, 1889, in book 81 of
mortgages at page 1872 of the records
| of Sacramento County
| On August 20, 1894, Troi being still
unable to pay his indebtedness to Wit
| tenbrock, which at this time amounted
| to nearly nine thousand dollars, and
being also desirous of settling such in
| debtedness, Joined with his wife, Kit
| tie M. Trol, in the execution of a
grant deed to Wittenbrock for said
land, which said deed was recorded on
! the list day of August, 1894, in book
loo Of deeds at page. 414 of the rec
| ords of Sacramento County. Before
accepting the deed Wittenbrock caused
| an abstract of title of said lands to be
| made by j. j. Buckley a searcher of
| records at Sacramento City, and there
from it appeared that said land was
unincumbered except by the mortgage
| to Wittenbrock, and he was so advised
| by counsel to whom the abstract was
submitted At the time of the execu-
ton and delivery of said deed on Au-
gust 20, 1894, to Wittenbrock, he en-
tered into the possession of said land
and so remained in possession thereof
until the date Of his death and since
| that time his said executrix has occu-
pied and possessed the same
| The facts connected with and sur
rounding the execution of plaintiffs
mortgage are as follows: The defend
/ s1Al, l. dih IIOi, III dOullIOn TO the cul-
| tivation of the land which he owned
and had mortgaged to Wittenbrock as
above stated, had rented and was en-
gagged in the cultivation of a tract of
| land known as the Parker ranch"
| situated some four or five miles dis
tant from the lands mortgaged to Wit
tenbrock. To secure the payment to
plaintiff of said sum of twelve hundred
and fifteen dollars borrowed from him
as aforesaid and for the purpose of
enabling the defendant, Troi, to SOW
and harvest a crop on the said "Par-
ker ranch, Troi executed a crop mort
gage on the growing crop on said Par
ker RANCH" which is the mortgage that
plaintiff seeks to foreclose in this ac-
tion. Said mortgage was written by
| the plaintiff himself on an ordinary
printed form Of crop mortgage.
| In said printed form of crop mort
| gage there are two blank lines just
above the attesting clause left for the
purpose of inserting any agreement be-
| tween the parties not included in the
printed matter in said form, and which
said two lines are usually employed for
the purpose Of limiting the time or
place for the delivery of the crop to
the mortgage in the event of the fail
ure Of the mortgagor to make the pay
| ment therein provided for. In these
two blank lines in plaintiffs mortgage
| the plaintiff has written with a pen,
in very fine and closely written hand,
| the following covenant, namely: "And
| for the purpose of securing the pay
ment of any deficiency / hereby grant
unto the second party all the land
| owned by me of every description
whatsoever. situated, lying and being
in the city or county of Sacramento,
or State of California, and / hereby
authorize the second party to foreclose