Bollinger v. Manning
Before: Belcher
Synopsis
Married Women—Certificate of Acknowledgment — Insufficiency of — Examination without Hearing of Husband. -—The certificate of the acknowledgment of a married woman must show that the certifying officer, upon an examination without the hearing of her husband, made her acquainted with the contents of the instrument. A certificate that she was by the officer “first made acquainted with the contents of said instrument, and thereafter she duly acknowledged to me, upon examination, separately, apart from, and without the hearing of her husband,” etc., is insufficient.
Id.—Conveyance not Properly Acknowledged is Void.—A deed or mortgage of a married woman not properly acknowledged by her is void.
Homestead—Community Property—Title Vests in Wife on Death of Husband — Order Setting Aside. — On the death of the husband, the title to a homestead declared on community property vests absolutely in the surviving wife; and an order of court made in the matter of the husband's estate, purporting to set aside the homestead property “for the use of the family,” does not in any way change or affect her rights as survivor, but merely excludes the property from administration.
Id.—Foreclosure of Mortgage on Homestead — Claim must be Presented against Estate of Mortgagor — Death Pending Foreclosure. —Under sections 1475 and 1502 of the Code of Civil Procedure, no action to foreclose a mortgage on the homestead of a deceased mortgagor can be maintained, unless the claim secured by the mortgage be first duly presented for allowance to the personal representative of the mortgagor. And this is so, notwithstanding the action of foreclosure had been commenced, and a lis pendens had been filed, prior to the death of the mortgagor, and the plaintiff expressly waives all recourse against any other property of the estate.
Id.—Presentation not Excused when Entire Estate is Homestead.— The fact that the estate had no assets other than the mortgaged homestead which could he subjected to the payment of the mortgage debt does not avoid the necessity of the presentation of the claim.
Estate of Decedent—Notice to Creditors—Place for Presentation — Office of Attorney. —Under section 1490 of the Code of Civil Procedure, a notice to the creditors of a decedent, requiring them to present their claims to the administrator, may designate the office of his attorney as the place where he transacts the business of the estate, and the place for the presentation, although he does not reside there, and transacts his ordinary business elsewhere.
Belcher, C. C. Action to foreclose a mortgage. The court below gave judgment for defendants, and the plaintiff appeals.
The mortgage in suit was executed by Patrick Manning in December, 1883, and was signed, but not properly acknowledged, by Ellen Manning, his wife. The property mortgaged consisted of eighty acres of land with the improvements thereon, and was community property. Manning resided upon the property with his family, and in December, 1885, filed a declaration of homestead in proper form thereon, in which he declared, among other things, that he estimated its actual cash value to be four thousand dollars. Plaintiff commenced this action in February, 1886, making Patrick Manning, Ellen Manning, and certain subsequent encumbrancers parties defendant, and at the same time filed a notice of Us pendens. Patrick Manning died intestate in March, 1886, and thereafter Henry Lewis was duly appointed administrator of his estate, and was substituted as defendant in his place. Notice to the creditors of the decedent was published, requiring all persons having [10]claims against him to exhibit them, with the necessary vouchers, within four months after the first publication, "to the said administrator at the office of Wright and Hazen, in the city of Modesto, the same being his place for the transaction of the business of the said estate, in the county of Stanislaus, state of California.” An inventory of the estate was filed, in which the real property was appraised at $4,000 and the personal property at $1,243.50.
In September, 1886, the court, by an order duly made, set apart "for the use of the family of said P. Manning, deceased,” the land described in the declaration of homestead, together with the dwelling-house thereon and its appurtenances, and ordered that the same be not subject to administration. Mo claim was presented by plaintiff within the time limited in the notice, but about a year thereafter, in October, 1887, plaintiff presented his claim duly verified, and the same was rejected by the administrator. Thereupon plaintiff amended his complaint, setting up the presentation of the claim as aforesaid, and expressly waiving all recourse against any property of the estate other than that described in the mortgage. The defendants, by their answer, pleaded in bar of the action sections 1500, 1493, 1502, and 1475 of the Code of Civil Procedure. The court below held that the action was barred by the sections named, and rendered judgment accordingly.
1. The action cannot be maintained against Mrs. Manning on the ground that she executed the mortgage, and so the title to the mortgaged premises, which vested in her on the death of her husband, fed the security, and inured to the benefit of the mortgagee. The certificate of her acknowledgment had the same defects as the certificate which was held insufficient in Hutchinson v. Ainsworth, 63 Cal. 286. And it is well settled that a deed or mortgage of a married woman is void unless it
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