Bank of Suisun v. Stark

California Supreme Court Mar 6, 1895 No. No. 18322Published

Before: Belcher

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Holding. The court held that the execution of a deed conveying the homestead property constituted a grant that abandoned the homestead, thereby allowing the subsequent foreclosure of mortgages on the property without the necessity of presenting claims to the administrator of the mortgagor's estate.

Issues

Did the execution of the deed to the son constitute a 'grant' that abandoned the homestead under the Civil Code?
Were the conditions in the deed conditions precedent or subsequent?
Was the failure to present mortgage claims to the administrator a bar to foreclosure?

Disposition. affirmed

Quotations verified verbatim against the opinion

“A homestead can be abandoned only by a declaration of abandonment, or a grant thereof, executed and acknowledged”

“The obligations, however, to make the payments were clearly conditions subsequent and not precedent.”

Synopsis

Abandonment on Homestead—Grant upon Condition Subsequent— Reservation to Grantors.—A homestead is abandoned by a deed of grant executed by the husband and wife purporting to convey the land in prcesenti to the grantee, and to his heirs and assigns, upon the express condition that the party of the second part shall make certain specified payments to the children of the grantors, and that when the party of the second part, or his heirs or assigns, shall have performed such conditions, the legal title to the premises shall vest in him absolutely; and such deed vests the title in the grantee upon condition subsequent, and the title is not affected by the reservation to the grantors of the right to live in and occupy the house on the premises, and to he supported and clothed out of the yearly proceeds of the premises so long as they should live.

Id. — Mortgage toon Homestead — Estates of Deceased Persons— Presentation of Claim.—Where the homestead was abandoned before the death of the mortgagor, the fact that a homestead existed at the time when the mortgage was executed does not make it essential that a claim should be presented against the estate of the deceased mortgagor; but the mortgage may be foreclosed upon the premises, where the complaint expressly waives all recourse against any other property of the estate of the mortgagor than that described in the mortgage.

Id.—Parties—Representatives of Deceased Wife.—Where no administration has been had upon the estate of the deceased wife, and the property mortgaged was community property, a complaint making all of the heirs at law of both husband and wife parties defendant is not defective upon the ground that the personal representative of the deceased wife was not made a defendant.

Belcher, C. Jeremiah V. Stark was the owner of certain land in Solano county, which was community property, and on which he with his family was residing, and on August 8, 1870, he duly executed, filed, and caused to be recorded a declaration of homestead thereon. On September 15, 1883, he and his wife, Mary Ann Stark, executed a deed of the said land to their son, the defendant William S. Stark, and on August 13, 1885, the latter reconveyed the said land to his father and mother.

On August 25, 1885, Stark and his wife executed to the plaintiff a mortgage on the said land to secure payment of their promissory note of that date for three thousand dollars; and on September 21, 1887, they executed to the plaintiff another mortgage on the same land to secure payment of their promissory note of that date for five hundred dollars.

[204]Stark died July 30, 1888, and thereafter the defendant William S. Stark was duly appointed administrator of his estate. Notice to creditors to present their claims against the estate was duly given, but the plaintiff failed to present any claim for its said notes and mortgages within the time allowed by law.

Mrs. Stark died July 11, 1889, but no administration on her estate was ever taken out.

The plaintiff commenced this action in August, 1890, to foreclose its said mortgages, and in its complaint expressly waived all recourse against any other property of the estates of the mortgagors than that described in the mortgages.

The defendants, who are all of the children and heirs at law of the mortgagors, answered, and, among other things, alleged that, by reason of the failure of the plaintiff to present its claims to the administrator of the estate of J. V. Stark within the time allowed by law, each of the causes of action set up was barred by the provisions of sections 1475, 1493, 1500, and 1502 of the Code of Civil Procedure.

The case was tried and the court found the facts very fully, and, among other things, that the causes of action were not barred by the sections of the code pleaded in bar thereof. A decree of foreclosure was accordingly entered, from which, and from an order denying their motion for a new trial, the defendants appeal.

The principal contention of appellants is, that when the mortgages were executed the mortgagors had a valid and subsisting homestead on the mortgaged premises, which was never abandoned, and that after their death it became necessary, under the requirements of the code and the decisions of this court, that the plaintiff should present its claims to the administrator of the estate of said J. V. Stark for allowance before any proceedings for foreclosure could be taken.

Bank of Suisun v. Stark

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