Security-First National Bank v. Evanson

BARNARD, P. J.

This is an appeal from a judgment dated July 29, 1930, in favor of the plaintiff in an action to foreclose a mortgage brought against the administrator of the mortgagor. It appears that a claim for the amount unpaid on the note and mortgage was presented, approved and filed in the estate on June 11, 1926. About four years later, and while probate proceedings were still pending, this action was commenced, all recourse against any property of the estate other than that covered by the mortgage being expressly waived in the complaint. During the intervening four years the administrator had paid to the mortgagee out of estate funds some fourteen scattered payments, ranging from $17.50 to $52.50 each, amounting to a total of $364.68. Apparently these payments covered interest with a small amount to be applied upon the principal sum.

The only points raised on this appeal are that the court erred in permitting a foreclosure of the mortgage under these circumstances and that, in any event, the foreclosure should have been made conditional upon the return of the amount paid from the funds of the estate. It is contended that the filing of this claim and the acceptance of these payments constituted an election by the mortgagee to proceed under what was then section 1569 of the Code of Civil Procedure; that the mortgagee was thereby estopped from foreclosing as then permitted by section 1500 of that code;

[395]

and that the mortgagee could not and did not make the required waiver of all recourse against the property of the estate other than that covered by the mortgage, so long as the payments referred to were retained.

It is well settled that a mortgagee had the right under the former section 1500 to foreclose his mortgage after presenting and filing such a claim in the estate of the mortgagor

(Visalia Sav. Bank

v. Curtis, 135 Cal. 350 [67 Pac. 329]). The only question remaining is whether the acceptance from the estate of payments upon such a mortgage would prevent a subsequent foreclosure either on the ground of election of an inconsistent remedy or as in fact showing that recourse against other property of the estate was not waived.