Keyes v. Cyrus

Harrison, J. July 22, 1889, M. M. Keyes and Barbara Keyes, his wife, made their promissory note to John Cyrus for seven thousand one hundred and seventy-five dollars, and as security for its payment executed to him a mortgage upon certain lands in Sonoma county. M. M. Keyes died October 17,1889, and his widow Barbara was appointed administratrix of his estate and continued to act as such until August 10, 1891, when her final accounts were settled, and she was discharged [323]from her trust. No homestead had been selected in the lifetime of said Keyes, and on June 30, 1890, the superior court for Sonoma county upon due proceedings had therefor, by its order made that day, set apart as a homestead for the use of the said Barbara certain lands belonging to the estate of said Keyes other than those included in the mortgage, and on the 7th of July a copy of the said order was recorded in the office of the county recorder. The property so set apart as a homestead was community property of the said Barbara and her husband, and he left no minor children surviving him. At the time the land was set apart to her Barbara was residing thereon, and continued to reside there until December 17, 1891, when she conveyed the premises to the plaintiffs. After the death of Keyes, Cyrus presented to the administratrix a claim against his estate upon the note and mortgage, which was duly allowed and approved, and thereafter, in an action instituted in the said superior court for the foreclosure of the mortgage, a judgment was rendered against said Barbara as administratrix, and also individually, for the amount of the note, and directing a sale of the mortgaged premises and the application of the proceeds thereof upon the judgment, and, if there should be any deficiency, that it should be docketed against said Barbara. Under this judgment the mortgaged lands were sold June 15, 1891, and the proceeds being insufficient to satisfy the judgment, the deficiency thereof, amounting to three thousand seven hundred and ninety-eight dollars, was docketed against Barbara on the 16th of June, 1891. January 5, 1892, the defendants herein, to whom Cyrus had assigned his judgment, caused an execution to be issued on this deficiency judgment and placed in the hands of the sheriff, under which he levied upon the lands that had been set apart to Barbara, and was advertising the same for sale when the plaintiffs brought this action to restrain the said sale. Judgment was rendered in their favor, and the defendants have appealed.