Perkins v. Onyett

Per Curiam. — This action was brought upon a promissory note made in his lifetime by John Onyett, deceased, and upon a mortgage to secure it, executed by said John and his wife, Amy Onyett, on premises which constituted their homestead, the homestead being on community property. The defendants are S. B. Onyett, executor of the estate of said John, deceased, the said Amy, his widow, and Jenkin Morgan, who claims an interest in the mortgaged premises. The answer of the executor and said Amy sets up several defenses, such as payment, the statute of limitations, etc., and denies that there was ever any legal presentation of either the note or the mortgage to the executor within the time prescribed by law. The trial court gave judgment for plaintiffs upon both the note and mortgage, and the executor and said Amy.appeal from the judgment, upon the judgment roll, with several bills of exceptions. The court finds, among other things, that the only presentation of plaintiff’s claim that was made to the executor within the time prescribed by law was a presentation of the note alone, without any reference whatever to the mortgage, and that the only affidavit by which said claim was supported was as follows: “Milton J. Green, agent for Perkins & Co., whose foregoing claim is herewith presented to the executor of the estate of said deceased, being duly sworn, says that the amount thereof, to wit, the sum of six [350]thousand five hundred and fifty dollars, and interest, is justly due to claimant; that no payments have been made thereon which are not credited; and that there are no offsets to the same, to the knowledge of said claimant.” This was signed by Green, and sworn to before a notary public, and was properly certified. As there was no presentation of the mortgage, that part of the judgment which forecloses it is clearly erroneous. Even if all recourse against other property had been waived in the complaint (which was not done), still the judgment could not be maintained, because a mortgage of a homestead on community property must be presented. (Code Civ. Proc., sec. 1475; Camp v. Grider, 62 Cal. 20; Bollinger v. Manning, 79 Cal. 7.)

It is contended, however, that the mortgage, having been defeated through failure to present it, might be considered as valueless, and that therefore an action under a properly amended complaint might be maintained against the estate upon the note alone. But it is useless to consider that question, because the presentation of the note itself was fatally defective. Section 1494 of the Code of Civil Procedure, after providing that every claim presented to the executor or administrator “ must be supported by the affidavit of the claimant, or some one in his behalf,” further provides that “ when the affidavit is made by a person other than the claimant, he must set forth in the affidavit the reason why it is not made by the claimant.” No attempt to comply with this last requirement in presenting the note in the case at bar was made. (See affidavit of Green, above quoted.) The section also provides that the affidavit must state that there are no credits, offsets, etc., “ to the knowledge of affiant,” which the affidavit in this case does not state. It is contended that Estate of Swain, 67 Cal. 637, is authority to the point that such defect in the affidavit is not material. But that case does not support this contention. The Estate of Swain was not a case where a