Schadt v. Heppe

By the Court, Belcher, J.: The plaintiff did not present his note and mortgage to the administrator for allowance within ten months after the first publication of notice to creditors, nor within ten months after they became due; and the only question is, whether they thereby became barred under the provisions of section one hundred and thirty of the Probate Act. The mortgage was executed by Jacob Heppe and- his wife, upon a lot in the City of Sacramento, then held and owned by them as common property, to secure his individual note. On the 20th day of February, 1870, and before the note became due, Heppe died intestate, leaving the defendants, Henrietta, his widow, and liosa Henrietta, his infant daughter, his only heirs. Early in March of the same year letters of administration upon the estate were issued to the defendant, William Hi cholas Heppe, who thereupon qualified and entered upon the duties of his office. In April, 1870, upon petition of the widow, the Probate Court made an order, which is still in force, setting apart the mortgaged premises for the use and benefit of the widow [437] and her infant child, and freeing the same from further administration. In his complaint the plaintiff has disclaimed all right to go against the general assets of the estate, or to have any decree entered, other than for the foreclosure of the mortgage and sale of the premises, for the payment of the sum due on the note, and costs of suit. At the trial the plaintiff obtained a decree foreclosing his mortgage; but no judgment over was rendered against any of the defendants or the estate. When the mortgaged premises were set apart for the use of the widow and family, they ceased to be a part of the assets of the estate, and were no longer subject to the control of the administrator or the Probate Court. The present right to the possession of the property at once passed to the widow and child, and they thenceforth held it subject to the mortgage, but free from all other claims against the estate. (Estate of Orr, 29 Cal. 101.) For the purposes of a mere foreclosure, therefore, the administrator was no longer a necessary or proper party to the action. ¡Nothing being claimed against the estate, it was a matter of no concern to him whether the mortgage should be foreclosed or not. ■ As thus presented, we do not think the case distinguishable in principle from Christy v. Dana, 34 Cal. 548; Wright v. Ross, 36 id. 414, and Sichell v. Carillo, 42 Cal. 493. In Christy v. Dana, a mortgage had been executed by the intestate upon certain lands, which, prior to his death, he and his wife had conveyed to the Natoma Water and Mining Company. The action was brought against the administratrix and the company for the foreclosure of the mortgage. A decree of foreclosure had been rendered, and one of .the points relied on for a reversal was: “That the plaintiff’s claim was not presented to the administratrix for allowance until after the'administration was closed.” It was held that [438] “inasmuch as no relief is demanded against the estate, and the intestate, at the time of his death, had no interest in the land, there was no need for the plaintiff to present his claim to the administratrix for allowance.” In Wright v. Ross, the defendant held a note and mortgage, executed by one Turner, as collateral security for a note made by one Buckelew. Buckelew died and his executrix gave the requisite notice to creditors. The note was not presented to the executrix for allowance, and it was claimed that it thereby became barred, and Ross lost all right to retain the collateral security or its avails. The Court said: “If the creditor of a deceased person would preserve his claim xagainst the estate of the deceased, to be paid in course of the administration, he must present it to the personal representative of the deceased as required by the statute, otherwise it becomes barred forever; that is, it becomes barred as a claim against the estate, and no action can be maintained thereon. (Probate Act, Chap. 6.) But if he have in his possession property which by contract he holds as security for the payment of the amount due him, we do not understand he loses bis right to retain it in pursuance of the terms of his contract because he fails to present his claims against the estate. He may not desire to look to anything for payment, except that which he has in possession, and which he has a right to retain until his demand is satisfied.” In Sichell v. Carillo, the wife of one Rains had joined him in the execution of a mortgage upon her separate estate to secure the payment of his individual note. Rains died and the action was afterwards brought against her to foreclose the mortgage. The note was never presented to the administrator of Rains’ estate, but it was held that there was no bar as against her and the land mortgaged. “It may be,” said-the Court, “ that where the personal liability is against the Estate, and the. mortgaged property belongs to the estate, [439] that, in any event, the debt would have to be satisfied out of the estate, it would be necessary to present the claim to prevent a bar and keep the remedy alive as to the debt, in order to uphold the remedy on the mortgage. But the principle can have no application to the case now in hand, where there is a contract of another party still alive—where the land is under a contract, not barred, to satisfy the demand.’’ Judgment affirmed.