Security-First National Bank of Los Angeles v. O'Connor

CRAIL, P. J.

The plaintiff (respondent) was the owner of a note and mortgage executed by A. Carlton Weaver during his lifetime. After his death Maurice O’Connor was duly appointed the executor of his estate. After the note became due the plaintiff filed a claim against the estate' for the amount of the note with interest and costs. Thereafter, the plaintiff proceeded to foreclose the mortgage and obtained a judgment for the amount of the note with interest and costs and attorney’s fees and an order for a deficiency judgment in event the property did not sell for sufficient to pay the judgment, also an order that execution issue on such deficiency, from all of which the appeal is taken.

The defendants’ first contention is that “the holder of a promissory note secured by a mortgage on real estate owned by the estate of a deceased mortgagor cannot obtain a

[594]

decree of foreclosure of said mortgage, to be followed by a judicial sale of the property, unless the plaintiff in his complaint in foreclosure expressly waives all recourse against any other property in the estate”. In making this contention the defendants rely upon section 716 of the Probate Code taken in connection with certain language used in the case of

Visalia Savings Bank

v.

Curtis,

135 Cal. 350 [67 Pac. 329]. That was a case in which there was a foreclosure of a lien against property of a decedent but where no claim had been filed against the estate. The case has no application to the instant case in which a claim was duly and regularly filed.

(Schlaudeman

v.

Grubel,

15 Cal. App. (2d) 499 [59 Pac. (2d)

873]; Hibernia Sav. & Loan Society

v.

Conlin,

67 Cal. 178, 180 [7 Pac. 477];