Hodge v. Norton.

HENSHAW, J.

Marian G. Norton and H. C. Morrill, defendants, appeal from the judgment of the superior court for the foreclosure of a mortgage executed by Marian G. Norton to the plaintiff, and for the foreclosure, on the cross-complaint of defendant Yocco, of a mortgage executed by Marian G. Norton to him.

During the progress of the administration upon the estate of Henry B. Norton, deceased, formerly husband of defendant

[100]

Marian G. Norton, the court in probate set aside about thirty-six acres of land as a homestead for the widow, Marian G. Norton, and her two minor children. The property thus set aside was community property; and, subject to the homestead, the title to an undivided one half vested in Marian G. Norton, and the title to an undivided one fourth each in the two minor children. One of the children was a minor at the commencement of the action, and would arrive at majority upon January 1, 1900. In' 1894, Marian G. Norton executed the mortgage in suit to plaintiff, upon her interest in the homestead land. Subsequently, in 1895, she executed another mortgage upon the same land to her co-defendent, Yocco.

The decree of the court ordered a foreclosure of the liens of these mortgages, and decreed a sale of Marian G. Norton’s interest in the land, providing further, however, that the purchaser at foreclosure sale should he entitled to enter into possession only when the youngest child attained majority.

Upon this appeal there is no pretense but that the money was paid upon the security of the mortgages, and has not been repaid. The contention merely is, that the mortgages so made hy Marian G. Norton were nullities, and ineffectual to impose any liens upon the homestead property. This contention is conclusively answered by the case of

Hoppe

v. Fountain, 104 Cal. 101. In that case, as in this, the widow executed a mortgage upon the probate homestead set apart to her and to the minor children, and in discussing the validity of this mortgage it was there said: “As the owner of an undivided interest in the land, it was competent for the mother to mortgage or convey such interest. She could not, however, confer upon her grantee or mortgagee any greater rights in the premises than she herself held. As she could not destroy the homestead quality of the premises, or deprive the minor children of their right to occupy the homestead, any grantee of her interest must take it subject to the same limitations. A purchaser at the foreclosure sale can obtain no greater rights than would her immediate grantee, and the court in the foreclosure proceedings would have no right, by reason of any covenant in the mortgage, or allegation in the complaint, to make any order, or direct any act which would affect the rights of any of her co-tenants. For the purpose of informing the court of the extent of her interest and the nature of the estate which she had I mortgaged, it was proper for her to allege in her answer the