Kleinsorge v. Kleinsorge

CHIPMAN, C.

Action to foreclose a mortgage. Defendant Albert F. Kleinsorge made default. Plaintiff had judgment against both defendants, from which and from the order denying her motion for a new trial defendant Mamie L. Kleinsorge appeals.

The note and mortgage were executed by both defendants, who are husband and wife. The note was dated August 1, 1896, and was drawn payable one year after date, with interest payable monthly. The note contained the provision, that if the interest was not paid as stipulated in the note,

“

the whole note may, at the option of the holder, without notice to the makers thereof, be treated as due and collectable.” It also contained the following provision: “ If this note is not paid at

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maturity, it is hereby renewed from year to year, at the option of the holder, until paid; and during such year the maker shall not have the right to pay the same.”

The mortgage was not recorded until August 30, 1897, and meantime, to wit, August 28,1897, defendant Mamie L. Kleinsorge executed and caused to be recorded a homestead on the mortgaged premises.

Two questions are presented: 1. Should the mortgage prevail over the homestead claim? 2. Was the action prematurely brought?

1. The first question is answered in the affirmative by the decision in

Duncan

v.

Curry,

124 Cal. 106; citing, to like effect,

Downing

v.

Le Du,

82 Cal. 471.

Appellant concedes that

Duncan

v.

Curry,