Rosenberg v. Ford

The Court. This action is for the foreclosure of a mortgage. It appears that the appellant and her husband, in his lifetime, executed a mortgage to secure certain notes, made by the husband, upon a homestead declared upon community property. The husband after-wards died, and the wife qualified as the administratrix of his estate, and published the notice required by law for creditors of the estate to present their claims within four months of the publication of the notice. The holders of the notes and mortgage failed to present them, or either of them, within the time prescribed by the notice for allowance or rejection. After such neglect on their part, they obtained another mortgage from the defendant, Mrs. Ford, securing the payment of other notes, the amounts of which were made up of the original debt of the husband, and of the sum of $292, borrowed by the wife prior to the time she gave the second mortgage and notes. At the time she thus executed that mortgage and the notes it secured, she did not know that the first mortgage and notes were barred for the want of presentation, etc., but executed them in ignorance and mistake as to the law upon such, a matter. It is also alleged in the answer that she believed the first mortgage and notes to be valid, and the plaintiffs represented them so to be, and that she was liable to pay, satisfy, and discharge them when she executed the last notes and mortgage; but it is not alleged that at such time the plaintiffs knew that they were invalid, and concealed such knowledge from her.

Several months after the execution by the defendant of the notes and mortgage now under consideration, she for the first time discovered that they were barred; and as soon as she learned such to be the law, she notified the plaintiffs that she had executed these obliga[612]tions under such mistake of law, and that they were invalid, except as to the sum of $292, and interest thereon, which was what she had herself individually borrowed of them. It is further alleged in the answer, that, except as to the $292 and interest, the notes and mortgage were without consideration as to the defendant. The conclusion of law from the findings is, that the consideration for the execution by the defendant of the promissory notes and mortgage set forth in the complaint is in all respects adequate and sufficient in law, and that said mortgage is a valid and binding lien upon the property and premises therein described.

Assuming, as we must under the decision in Camp v. Grider, 62 Cal. 20, affirmed in Bollinger v. Manning, 79 Cal. 7, and Mechanics’ B. & L. Association v. King, 83 Cal. 443, that the'failure to present for approval and allowance the first notes and mortgage operated as a bar to the foreclosure of the mortgage, it then becomes important to determine whether the execution of the last notes and mortgage, so far as the amount of the first notes is concerned, was based upon an adequate consideration.