Votypka v. Valentine

RICHARDS, J.

This is an appeal from a judgment in favor of the defendants. The action is one to foreclose a mortgage. The facts are undisputed and are 'briefly as fol

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lows: On and prior to the ninth day of May, 1911, the premises described in the complaint herein were the community property of Clarence A. Valentine and Flora A. Valentine, his wife, and hn the above date they executed their promissory 'note, secured by a mortgage, upon the whole of said premises, delivering the same to one George F. Hilton, with the mortgage described therein, which note, as to the principal and as to a certain portion of the interest, was unpaid at the time this action was brought. The mortgage .thus executed and delivered described the property covered thereby as “situate, lying and being in the county of Lake, State of California.” The mortgage was recorded in Lake County on May 16, 1911, but was also recorded in Napa County on December 15, 1915, a few days before this action was commenced. On March 19, 1912, Clarence A. Valentine made and executed a declaration of homestead upon the whole of said premises, describing the same as being situated in the county of Lake, and recorded said declaration of homestead upon the date of its execution in the county of Lake, but not elsewhere. On August 27, 1912, said Clarence A. Valentine died intestate in the city and county of San Francisco, being then a resident therein, and thereafter and on April 25, 1913, after due proceedings had, his widow, Flora A. Valentine, was duly appointed and qualified as the administratrix of his estate. On said April 25, 1913, an order for the publication of notice to creditors was signed by the probate judge, which was filed with the clerk of his court on the following day; on April 28, 1913, another order for the publication Of notice to creditors was signed by the same judge and filed on the same date with the clerk. These two orders are identical, except as to their dates and filing marks, and no reason for their duplication appears in the record. Both orders were recorded on May 2, 1913. The first publication of notice to creditors under one or both .of these orders was made on April 29, 1913. It appears in the record that such publication was made in the selected newspaper on said April 29, 1913, and also on May 6th, 13th, and 20th and 27th of that year, and that on June 20, 1917, upon a showing of these facts, a decree establishing due and legal notice to creditors in said estate was signed, filed, and recorded in said probate court. No claim was ever presented to the administratrix of said, estate by the holder of said note and mortgage which shortly after their execution