Wise v. Williams
Synopsis
Appeal — Law op the Case. — A question presented and decided by the appellate court upon an appeal from a judgment on demurrer, as to the sufficiency o£ the complaint, becomes the law of the case, and is not open to question upon a subsequent appeal.
Estate of Deceased Persons — Allowance of Claim — Statute of Limitations. — The allowance and approval of a claim against the estate of a deceased person by the administrator and judge stops the running of the statute of limitations against the claim.
Id. •— Presentation of Mortgage upon Homestead. — A mortgage given by a husband and wife upon property upon which a homestead is afterward declared must, upon the death of the husband, be presented as a claim against his estate, notwithstanding a waiver in the complaint, in an action of foreclosure, of all recourse against the property of the estate other than the property mortgaged.
Id. — Interest of Deceased Wife. — The interest of a deceased wife in the homestead property at the time the mortgage was made cannot be reached unless a claim is presented against her estate; but in. so far as her rights as successor of her husband are concerned, the allowance of the claim against his estate is sufficient to bind those rights and stop the statute of limitations.
Id. — Publication of Notice to Creditors — Time for Presentation of Claims. — A publication of notice to creditors of the estate of a deceased person, made in advance of an order of the court fixing the legal period of publication, is invalid; and where the number of publications after the order is made fall below the statutory minimum, the presentation and allowance of a claim more than four months after the last publication are within the time prescribed by law.
Id. — Affidavit of Publication — Evidence—Files of Newspaper.—The affidavit of publication is only prima facia evidence of the facts therein stated, and may be contradicted by the files of the newspaper in which the notice was published, showing that the notice was not published for the statutory time.
Id. — Decree Establishing Notice — Bes Ad judicata. — A decree establishing due notice to creditors is not conclusive, and may be controlled by proof that the publication was insufficient.
Id.—Allowance of Mortgage Claim — Bes Adjudioata — Bights of Heir—’Foreclosure. — The allowance of a mortgage against an estate by the administratrix, and its approval by the judge, are not conclusive upon the heir; but he may show in an action of foreclosure either that the debt to secure which the mortgage was given had been paid, or that payments thereon had been made and not credited prior to the allowance of the mortgage.
Id. — Improper Allowance — Effect of Foreclosure. —• A mortgagor cannot, by resorting to an action of foreclosure, deprive an heir of the mortgaged property of the right to show that the mortgage was improperly allowed in the administration proceedings.
The Court. This was a suit for the fpreclosure of a mortgage. The trial court gave judgment for the defendants, and the plaintiffs appealed.
This is the second time the case has come before the appellate court. The former judgment, which was upon demurrer, was reversed upon the ground that the complaint was not subject to the objections taken by the demurrer; and the court held, among other things, that the allowance of a claim by an administrator, and its approval by the judge, stopped the running of the statute of limitations. (See 72 Cal. 544.) As a matter of course, nothing that was then decided is open to question now.
The facts material to the present appeal are as follows: “ The mortgage sought to be foreclosed was made in 1877, by John Connell and Sarah, his wife, to secure the payment of a note made by the former. After the execution of the note and mortgage they declared a homestead upon the property, and subsequently the husband died, leaving an estate of less than ten thousand dollars. On the 19th of July, 1880, letters of administration were issued to the wife, and in accordance with section 1491 of the Code of Civil Procedure, she gave notice to creditors to present their claims within four months from the first publication of the notice. The first publication was on July 24, 1880, but there was no order for publication until August 2d. The findings show a sufficient publication of the notice, but the evidence does not, as will be explained below. On November 27th, a decree of due notice to creditors was made. On the 20th of the following December, the plaintiffs presented their claim, and it was allowed by the administratrix as presented, [33]and approved by the judge, and filed on the next day. On the 27tli of the same month an order was made that the homestead be set apart to the widow; and a little more than a year afterwards she died. Letters of administration upon her estate were issued to the defendant Hallinan, and letters upon her husband’s estate were issued to the defendant Williams. The complaint states that the plaintiffs “ expressly waive any and all recourse upon said note and mortgage against any property of the estate of said John Connell, other than the land above described as included in said mortgage.”
It does not appear what, if any, interest the wife had in the property at the time the mortgage was made; and nothing is said, either in the pleadings, findings, or evidence, as to the presentation of a claim to the wife’s administrator. The counsel seem to have assumed that it was not necessary to present such a claim, and following their lead, we have confined our examination to the husband’s estate.
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