Pitte v. Shipley

By the Court, Niles, J: Neither the promissory note, nor the mortgage given to secure it, was formally presented to the executrix or Probate Judge for allowance within ten months after the publication of notice to creditors. The note was made by the decedent alone, and the land mortgaged by him to secure its payment was a part of his general estate. The question is presented as to the effect of this failure to present the claim upon the rights of the plaintiff, who now seeks merely to foreclose his mortgage, but prefers no claim against the estate for any deficiency.

No case exactly like this has hitherto been before the Court, although the several sections of the Probate Act, upon which its determination depends, have been considered and construed in cases somewhat similar.

In Fallon v. Butler, 21 Cal. 32, the promissory note had been presented and allowed as a claim against the estate, and the question was, whether the lien of the mortgage could be enforced in equity, notwithstanding such allowance, or must be enforced in the Probate Court by an executor’s sale of the mortgaged premises and appropriation of the proceeds to the payment of the secured debt. While it was held that the District Court had jurisdiction of the foreclosure proceedings, it was said that the presentation and allowance of the note “were necessary to secure the payment of the debt out of the general estate, if that were de[159]sired, and perhaps, also, to prevent the debt from being barred by the statute, and thus to uphold the mortgage.”

In Christy v. Dana, 34 Cal. 553, the plaintiff sought to foreclose a mortgage upon property which had been conveyed by the decedent, prior to his death, to the defendant. The failure to present the claim for allowance to the administratrix was urged as a bar to the plaintiff’s recovery. It was held that such presentation was unnecessary, inasmuch as no relief was demanded against the estate, “and the intestate, at the time of his death, had no interest in the land.”

In Sichel v. Carillo, 42 Cal. 505, the mortgage in suit was executed by the wife of one John Rains, upon her separate property, to secure the payment of her husband’s individual note. The note was not presented to the administrator of Bains within ten months after publication of notice to creditors, and the widow defended the suit to foreclose the mortgage upon this ground. The Court held that while the action against Bains was barred by the failure to present the claim, the right of action upon the mortgage survived. But this decision was placed upon the ground that the mortgage was not the contract of Bains, nor was the mortgaged property a portion of his estate. Only the remedy upon the note was barred by failure of presentation; but the debt itself was not paid, satisfied, discharged, or in any way extinguished, and the defendant’s land remained subject to the lien created by her own contract for its payment. But the question now presented was expressly reserved in the following terms : “It may be that when the personal liability is against the estate, and the mortgaged property belongs to the estate, so that, in any event, the debt would have to be satisfied out of the estate, it would be necessary to present the claim to prevent a bar, and keep the remedy alive as to the debt, in order to uphold the remedy on the mortgage.”