Browne v. Sweet

TEMPLE, J.

This appeal is from the judgment which was entered upon overruling defendants’ demurrer to the amended complaint, the defendants declining to answer.

The action was to foreclose a mortgage given by one J. B. Sweet to secure his promissory note for the sum of five hundred dollars. In addition to the usual allegations in regard to the mortgage, it is averred in the complaint that J. B. Sweet died intestate on the 4th of October, A. D. 1895, leaving as his only heirs at law his wife, IJrena Sweet, and two minor children, to wit, Celia Sweet and Alfred Kenneth Sweet, who are the defendants herein.

It is further alleged that letters of administration were issued upon the estate of J. B. Sweet, deceased, to the defendant IJrena Sweet on the twenty-third day of October, 1895, and that thereafter, to wit, on the twenty-third day of April, 1897, “the said IJrena Sweet obtained her final discharge as administratrix of said estate, and said estate was settled, and the administration thereof was closed without any provision whatever being made for the payment of said mortgage, and that at this date there is no qualified or acting administrator of said estate.”

It is further shown that at no time has there been property or money in the estate which could have been applied to the payment of the debt, and that the estate possessed no assets except the property set apart for the use of the family, and the mortgaged premises.

And, further, that on the seventh day of January, 1896, “the superior court in and for the county of Modoc, by its decree regularly made, set apart said lands described in said mortgage

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as a homestead to the defendant in this action,” and these defendants are the only persons who have, or claim to have, any interest in said land. Plaintiff waives all claim to a deficiency judgment.

A special demurrer was interposed, which was sufficient to raise the questions presented here.

The first point made is that the administratrix of the estate of J. E. Sweet should have been made a defendant. It appears from the complaint that the entire estate had been regularly set apart to the use of the family of the deceased, either as property exempt from execution, or as a probate homestead, and that the estate had never had other assets. And also that the administration had been closed, and there is now no administrator and no estate which could be administered. The estate of J. E. Sweet, therefore, if it can be said that there is such a thing, could not be interested in the matter.