Balkins v. Norrby

LESTER BALKINS et al., Plaintiffs and Respondents, v. ALVIN L. NORRBY, as Executor, etc., Appellant; CLEON E. BALKINS, Defendant and Respondent.

COUNSEL

M. J. Gordon and C. S. Mauk for Appellant.

Henry P. Leavitt, Robert E. Austin, John N. Helmick and Van Lee Hood for Respondents.

OPINION

BISHOP, J. pro tem.

The defendant, Alvin L. Norrby, appearing as executor of the estate of Mary Dargit Trowbridge, has appealed from an order which denied his motion to vacate, and also granted the motion of another party to confirm, the sale of a parcel of real estate, the sale having taken place pursuant to an interlocutory decree entered in this partition suit.

[1] The only ground of appeal upon which appellant now relies was the principal ground of his motion to vacate the sale, that is, the admitted failure of the notice of the sale to state that the sale would be made subject to a mortgage lien in favor of the defendant Los Angeles County.

The silence of the notice on the subject referred to was neither inadvertent nor incorrect. The county's lien, the interlocutory decree declared, was not against the whole parcel being sold in lieu of physical partition, but attached only to the undivided two-thirds interest held by the estate. In such a situation it would have been improper to have ordered the property sold subject to the county's lien (Wernse v. Dorsey (1935), 2 Cal. 2d 513, 515 [41 P.2d 935]) and the interlocutory decree that was entered did not so direct. It ordered the parcel sold, not subject to the lien, but providing that payments on account of the lien should come from the estate's two-thirds interest in the proceeds of the sale, after the deduction of some general charges.

[2] Such criticisms of the interlocutory decree as appear in appellant's opening brief were doubtless made in support of the appeal, from the decree, which has been dismissed. (Balkins v. Norrby (1943), 61 Cal. App. 2d 413 [142 P.2d 958].) The decree, now being final, is not subject to attack on this appeal. (Oliver v. Sperry (1934), 220 Cal. 327, 329, 330 [30 P.2d 402].)

The order appealed from is affirmed.

Desmond, P. J., and Wood (Parker), J., concurred.