Newhall vs. Alexander, executor

In the District Court of the 17th Judicial District of the State of California in and for the County of Los Angeles - Case 4706

H. M. Newhall, Plaintiff
-vs-
D. W. Alexander, Executor of the last will and testament of Adam Malezewski, deceased, A. J. Kraszynski, George R. Dille, John Hunsicker, Elzbieta Jazlawski, D. W. Alexander, Trustee, D. W. Alexander, Marta Alexander, Josefa Murat, Andria Murat, last two being daughters of Francisvek Murat, Defendants

Complaint on Foreclosure of Mortgage, Filed September 24, 1878

H. M. Newhall, the plaintiff in the above entitled action, complaining of D. W. Alexander, Executor of the last will and testament of Adam Malezewski deceased, A. J. Kraszynski, George R. Dille, John Hunsicker, D. W. Alexander, Trustee, D. W. Alexander, Marta Alexander, Elzbieta Zaglawski, Josefa Murat, Andrea Murat, the defendants in said action alleges: That on a certain day to wit: the 19th day of February, A.D. 1874, at the City of Los Angeles County of Los Angeles in the State of California, the said Adam Malezewski made his certain promissory note in writing bearing date on that day, in the words and figures following, to wit:

$2000.00 Los Angeles, Cal. Feb. 19, 1874.
Twelve months after date without grace, for value received I promise to pay to E. H. Workman and W. H. Workman or to their order the sum of two thousand (2000.00) dollars with interest thereon at the rate of one and one half per cent per month from date until paid, the interest payable monthly at the end of each and every month from the date hereof and if not so paid to be added to the principal and to bear like interest therewith both principal and interest payable only in gold coin of the United States.
Adam Malezewski
Witness: A. W. Hutton

and then and there delivered the same to the said E. H. Workman and W. H. Workman.

That the said Adam Malezewski to secure the payment of the said principal sum and the interest thereon, as mentioned in said promissory note, according to the tenor thereof, did at the same time and place execute under his hand and seal and deliver to the said E. H. Workman and W. H. Workman a certain mortgage bearing date on that day and conditioned for the payment of the said sum of two thousand dollars, and interest thereon at the rate and at the time and in the manner specified in said mortgage and said promissory note, and according to the conditions thereof; which said mortgage was duly acknowledged and certified so as to entitle it to be recorded, and the same was afterwards, to wit: on the 19th day of February A.D. 1874, duly recorded in the Office of the County Recorder of the said County of Los Angeles in liber eleven of Mortgages, pages 465 et seq., which said mortgage exclusive of the Certificate of acknowledgement is in the words and figures following to wit:

This indenture made the nineteenth day of February in the year of our Lord one thousand eight hundred and seventy four between Adam Malezewski of the County of Los Angeles, State of California, the party of the first part and E. H. Workman and W. H. Workman, both of the City of Los Angeles in said County and State, the parties of the second part. Whereas the said party of the first part is justly indebted to the said parties of the second part, in the sum of two thousand dollars, gold coin of the United States of America, secured to be paid by a certain promissory note bearing even date with these presents, and which said note is in the words and figures following, to wit:

$2000.00 Los Angeles, Cal. Feb. 19, 1874.
Twelve months after date without grace, for value received. I promise to pay to E. H. Workman and W. H. Workman or to their order the sum of two thousand (2000.00) dollars with interest thereon at the rate of one and one half per cent per month from date until paid, the interest payable monthly at the end of each and every month from the date hereof and if not so paid to be added to the principal and to bear like interest therewith; both principal and interest payable only in gold coin of the United States.
Signed Adam Malezewski
Witness A. W. Button

Now, this indenture Witnesseth: that the said party of the first part, for the better securing the payment of the said sum of money, secured to be paid by the said promissory note, with interest thereon, according to the true intent and meaning thereof, and also for and in consideration of the sum of one dollar to him in hand paid by the said parties of the second part, at or before the unsealing and delivery of these presents the receipt whereof if hereby acknowledged has granted, bargained, sold and conveyed and confirmed and by these presents does grant, bargain, sell, convey and confirm unto the said parties of the second part, and to their heirs and assigns forever all that certain tract, piece or parcel of land, situate, lying and being in the said County of Los Angeles, State of California, and being a part of the Rancho San Francisco, as finally confirmed to Jacoba Feliz et al., and surveyed in December, 1859, by Henry Hancock, U.S. Deputy Surveyor, which part is bounded and particularly described as follows:

Beginning at an oak tree about 36 inches in diameter, on the East side of the road in the San Fernando Pass marked with a large cross on its Western side and with "L.#1" on its Northern side, and distant about half a mile in a northerly direction from Station No. 5 of said Hancock's survey, and running thence N. 77 deg W. 24 65/100 chains to a point; thence N. 22 deg 46" W. 21 28/100 chains to a point; thence N. 10 deg, 13' E. 54 48/100 chains to Station 4, from which an oak tree marked BT3 in a small canyon bears S. 75 deg 52' E. 2 54/100 chains; thence N. 79 deg 48', W. 24 79/100 chains to a sycamore tree marked No. 4 at the head of a small canyon; thence N. 38 1/2 deg E. 40 00/100 chains to station from which an oak tree marked BT5 bears S. 38 1/2 deg W. 7 95/100 chains; thence S. 48 deg 02' E. 53 18/100 chains to post marked No. 6; thence N. 86 deg E. 6 04/100 chains to a small sycamore tree marked No. 7; thence S. 80 deg E. 10 41/100 chains to post marked No. 8; thence West 7 77/100 chains to post in mound of rocks; thence S. 23 deg 41' West 28 10/100 chains to Station on high bluff; thence S. 6 1/2 deg W. 40 91/100 chains to place of beginning, containing 381 66/100 acres of land, and being the same land described in a deed of conveyance dated 1st day of December A. D. 1871, from the Philadelphia and California Petroleum Company to the party of the first part herein recorded in Book No. 18 of Deeds, pages 444 et seq. Recorder's Office of Los Angeles County to which deed reference is hereby made, together with all and singular the tenements, hereditaments and appurtenances, thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and also all the estate, right, title, interest, property, possession, claim and demand whatsoever as well in law as inequity of the said party of the first part, of, in or to the said premises, and every part and parcel thereof with the appurtenances.

To have and to hold, the said premises with the appurtenances unto the said parties of the second part, their heirs and assigns forever provided always and these presents are on this express condition, that if the said party of the first part, his heirs, executors and administrators, shall well and truly pay or caused to be paid to said parties of the second part, their heirs, executors, administrators or assigns, the said sum of money secured to be paid by said promissory note and the interest thereon, at the time and in the manner mentioned in the said promissory note according to the true intent and meaning thereof then, and in that case, these presents and the estate thereby granted, shall cease, determine and be void and the said party of the first part for himself and his heirs, executors and administrators, does hereby covenant, promise and agree to pay, to the said parties of the second part, their executors, administrators or assigns, the said sum of money and interest as mentioned in said promissory note, and secured to be paid as aforesaid, and if default shall be made in the payment of the said sum of money or any part thereof as provided in said note, or if the interest that may grow due thereon, or any part thereof, shall be behind and unpaid for the space of thirty days after the same should have been paid according to the terms of said promissory note, then and from thenceforth it shall be optional with the said parties of the second part, their executors, administrators, or assigns, to consider the whole of said principal sum expressed in said note as immediately due and payable, although the time expressed in said note for the payment thereof shall not have arrived and immediately to enter into and upon all and singular the premises hereby granted or intended so to be, and to sell and dispose of the same, and all benefit and equity of redemption of the said party of the first part, his heirs, executors, administrators, or assigns according to law and out of the money arising from such sale to retain the principal and interest which shall then be due on the said promissory note together with the costs and charges of foreclosure suit and also a percentage at the rate of ten per cent upon the amount of judgment recovered or in case the said foreclosure suit is settled before judgment recovered, upon the amount found due the plaintiff on said note and the mortgage, as counsel fees and commissions, and also the amounts of all such payments of taxes, assessments or encumbrances as may have been made by said parties of the second part, their heirs, executors, administrators, or assigns by reason of the permission hereinafter given with the interest on the same hereinafter allowed, rendering the over plus of the purchase money (if any there shall be) unto the said party of the first part, his heirs, executors, administrators, or assigns, and the said party of the first part does hereby further covenant, promise and agree to and with the said parties of the second part, to pay and discharge at maturity all such taxes, or assessments, liens or other encumbrances, now subsisting or hereinafter to be laid or imposed upon said premises or upon this mortgage or the money secured hereby or which may be in effect a prior charge thereupon to these presents during the continuance hereof, and default thereof the said parties of the second part may pay and discharge the same, and may at their option keep fully insured against all risks by fire, the buildings which are now or may be hereafter erected thereon, at the expense of the said party of the first part, and the sums to be paid shall be repayable in the same kind of money or currency in which the same may have been paid and shall bear interest at the rate of 1 1/2 percent per month and shall be considered as secured by these presents and be a lien upon said premises and shall be deducted from the proceeds of the sale thereof above mentioned, with interest as herein provided.

In witness whereof, the party of the first part has hereunto set his hand and seal the day and year first above written.

Adam Malezewski
Signed, sealed and delivered in the presence of A.W. Button.
That on the 25th day of May A.D. 1875, at said City of Los Angeles, the said E. H. Workman & W. H. Workman for valuable consideration then and there paid to them by the firm of Temple & Workman hereinafter referred to, endorsed, transferred, assigned and delivered to said firm of Temple & Workman the said note and mortgage, which said assignment and transfer was in writing duly acknowledged and recorded on said 25th day of May A.D. 1875, in liber 15 of Mortgages pages 363 et seq. County Recorder's Office of said County of Los Angeles.

That on the 24th day of May A.D. 1875, F.P.F. Temple and William Workman were partners, doing business in the City of Los Angeles, California, as such partners and as bankers, under the firm name and style of Temple & Workman and were such partners continuously thereafter up to and until the 17th day of May, A. D. 1876, at which last named date the said William Workman died.

That on the tenth day of July A.D. 1876, the said F.P.F. Temple individually and as surviving partner of the said firm of Temple & Workman, presented to and filed in the District Court of the United States in and for the District of California, a petition that he individually, and as surviving partner, be by said Court adjudged Bankrupt, and that pursuant to proceedings regularly had and taken, upon said petition by said Court, the said Temple individually, and as such surviving partner, was, be decree of said Court, duly made therein on the 26th day of September A.D. 1876, adjudged and declared bankrupt.

That on the 12th day of October A.D. 1876, the said G. S. Long was by the creditors of said estate duly elected Assignee in Bankruptcy thereof and thereafter, and before the 4th day of November, A.D. 1876, he accepted such election and qualified as such assignee and his election was duly approved by said United States District Court and ever since such qualification and approval he has continuously been, and now is, the duly appointed qualified and acting Assignee in Bankruptcy of said estate.

That on the 4th day of November, A.D. 1876, in accordance with and in pursuance of an Act of Congress of the United States entitled "An Act to Establish a uniform system of Bankruptcy throughout the United States", approved March 2nd, 1867, and the several acts amendatory thereof and supplementary thereto, an assignment of all the property, real and personal, of said Estate, and of all the property which the said Estate owned or possessed or to which it was entitled on the said tenth day of July, A.D. 1876, was made and executed to the plaintiff as such Assignee.

That the said Adam Malezewski in his lifetime made and published his last will and testament whereby he appointed the defendant D. W. Alexander Executor thereof.

That on or about the 28th day of January, A.D. 1876, the said Adam Malezewski, died, he being at that time a resident of the said County of Los Angeles.

That on the 12th day of February, A.D. 1876, by an order of the Probate Court of said County of Los Angeles duly made, the said will and testament was proved and admitted to probate. That thereupon on the said 12th day of February, A.D. 1876, letters testamentary were issued on the said will to the said D.W. Alexander and he thereupon entered upon the discharge of the duties of his trust and is still such Executor.

That on or about the 24th day of February, A.D. 1876, notice to creditors of and all persons having claims against the Estate of the said Malezewski, deceased, requiring them to present such claims to said Executor for allowance within ten months from and after the said 24th day of February, 1876, was duly published and given by said Executor.

That on the 14th day of July, A.D. 1876, at said City of Los Angeles, the claim against said estate evidenced by said note and mortgage hereinbefore set forth duly verified by and on behalf of the claimant, was duly presented in writing to said Executor for allowance and was by him allowed and approved and was thereupon upon said 14th day of February, A.D. 1876, duly presented to and allowed by the Probate Judge of said County of Los Angeles and on the same day was filed in the Probate Court of said County of Los Angeles.

That on the 3rd day of September, A.D. 1878, for valuable consideration, the said G.B. Long, as assignee aforesaid, sold, transferred, assigned and delivered to this plaintiff the said note and mortgage which said assignment was in writing, was duly acknowledged and was on the 6th day of September, A.D. 1878, recorded in Book 33 of Mortgages pages 252 et seq. County Recorder's Office, Los Angeles County, and that the plaintiff is now the legal owner and holder of said note and mortgage.

That in, and by the terms and provisions of said mortgage, it is covenanted and agreed that in the event of any suit being brought to foreclose said mortgage, the plaintiff in such suit should be entitled to recover attorney fees and commissions therein at the rate of ten percent on the amount of such judgment.

That the ten (10) percent so provided is a reasonable amount to be allowed the plaintiff as his attorney's fees herein.

That the interest on said note has been paid up to the 25th day of May, A.D. 1875, but no part of the balance has been paid.

That the defendants A.J. Kraszynski, D.W. Alexander, Trustee, D. W. Alexander, Marta Alexander, George R. Dille, John Hunsicker, Elzbieta Zazlawski, Josefa Murat and Andria Murat have or claim to have some interest in or claim upon said premises or some part thereof, as purchasers, mortgagees, judgment creditors, or otherwise, which interest or claims are subsequent to and subject to the lien of the plaintiff's mortgage.

Wherefore, the plaintiff prays judgment against the said defendant D.W. Alexander as Executor of the last will and testament of Adam Malezewski, dead, for the sum of two thousand dollars with interest at the rate of one and one half per cent per month from the 25th day of May, A.D. 1875, compounded monthly at the end of each and every month and for costs of suit and for ten (10) percent on the amount of the principal and interest of said note and mortgage as attorney's fees and commissions as provided in said mortgage; that the usual decree may be made for the sale of said premises by the Sheriff of said Los Angeles County, according to law and the practice of this Court; that the proceeds of said sale may be applied in payment of the amount due to the plaintiff and that said defendant Alexander as Executor aforesaid and the Estate of said Malezewski, deceased, and all persons claiming under the said Alexander or the Estate of said deceased or either subsequent to the execution of said mortgage upon said premises, either as purchasers, encumbrances, or otherwise, may be barred and foreclosed of all right, claim, or equity of redemption in the said premises and every part thereof. That the plaintiff or any other parties to the suit may become purchasers at said sale; that the Sheriff execute a deed to the purchaser, and that said purchaser be let into the possession of the premises on protection of the Sheriff's deed therefore and that the plaintiff may have such further relief in the premises as to this Court may seem meet and agreeable to equity.

Hutton & Godfrey,
Attorneys for plaintiff

Filed September 24, 1878
A.W. Potts Clerk

Judgement, (Filed May 26, 1879):

... Now therefore it is ordered, adjudged, decreed and determined that there is now due to the plaintiff herein, upon the debt and mortgage set forth in the complaint, the principal sum of two thousand dollars in gold coin of the United States, with interest thereon to the date hereos, now amounting to the further sum of two thousand and eighty-five 90/100 dollars, in like gold coin and together with the further sum of one hundred and ninety-two 50/100 dollars in like coin, as attorney fees, and also the further sum of ninety-nine 35/100 dollars in like coin as costs of this suit; all of said sums amounting in the aggregate to the amount of four thousand three hundred and seventy-seven 75/100 dollars in gold coin of the United States, and that the same bear interest from the date hereof at the rate of seven per cent per annum.

It is further ordered, adjudged and decreed that all and singular the mortgaged premises mentioned in the said complaint and hereinafter described, or so much thereof as may be necessary to raise the amount so found to be due to the plaintiff on said debt and mortgage as above stated and costs in the suit, taxed as aforesid and expenses of sale be sold at public auction, by or under, the direction of the sheriff of the County of Los Angeles, where said mortgaged premises are situate; that said sale be made in said Los Angeles County that the said sheriff give public notice of the time and place of such sale, according to the course and practice of this court and the law relative to the sales of real estate under execution and that the plaintiffs, or any of the parties to this suit may become the purchaser at such sale. That the said sheriff out of the proceeds of said sale retain his fees, disbursements and commissions on said sale and pay to the plaintiff or his attorneys of said proceeds the amount so found due as aforesaid to wit: the said sum of $4,377 75/100 in gold coin of the United States, together with interest thereon at the rate aforesaid, from the date of this decree, or so much thereof as the said proceeds of sale will pay of the same....

Sepulveda
Judge