Harp v. Calahan

By the Court, Crockett, J.: In his lifetime one S. W. Calahan, now deceased, made and delivered to the plaintiff his two promissory notes and mortgages on real estate to secure their payment. Subsequently Calahan died, and by his last will and testament devised the land to his widow and minor children. The will was duly probated and letters of administration with the will annexed were issued to the widow. This is an action against the widow and other devisees to foreclose the mortgage, and was commenced in August, 1872. It appears on the face of the complaint that the notes and mortgages were never presented to the administratrix for allowance supported by the affidavit required by the Probate Act in the presentation of claims against the estates of deceased persons. But it does not appear whether a notice to creditors was ever - published by the administratrix as required by law. The Court sustained a demurrer to the complaint, on the ground that the failure to present the claim for allowance was fatal to the action; and the plaintiff declining to amend, a final judgment was entered for the defendants, from which the plaintiff appeals.

[230]It has never been authoritatively decided by this Court, I believe, whether a creditor holding a debt secured by a mortgage made by a deceased person, whose estate still held the equity of redemption and the legal title to the mortgaged premises, must first present his claim for allowance, as a condition on which he can maintain an action to enforce his mortgage lien. It has, however, been decided that if the mortgagor, after the execution of the mortgage, convey the legal title to a third person and ceases to have any interest in the property, and then dies, the mortgage lien may be enforced without the presentation of the debt for allowance as a claim against the estate of the mortgagor. (Christy v. Dana, 34 Cal. 553.) In another case this Court decided that if a wife make a mortgage on her separate estate to secure a debt of her husband, who subsequently dies, the mortgage may be enforced against the mortgaged premises, though the debt was not presented for allowance as a claim against the estate of the husband. (Sichel v. Carillo, 42 Cal. 493.) In a more recent case, we held that if the mortgagor die, still holding the legal title and equity of redemption, and if the mortgaged premises be set aside by the Probate Court as a homestead for the use of the widow and child, whereby the property was no longer subject to administration as assets of the estate, the mortgage lien may be enforced, though the debt was never presented for allowance as a claim against the estate. (Schadt v. Heppe, 45 Cal. 433.) All these cases proceed on the theory that in requiring claims against the estate of a deceased person to be presented for allowance, within a limited period, the statute contemplates only such claims as are sought to be enforced as a charge against the estate generally, or against specific property in which the estate has at least a residuary interest. In Christy v. Dana, the mortgagor, in his lifetime, had ceased to have any interest in the mortgaged premises. In Sichel v. Carillo the property mortgaged was the separate estate