The record-union., 1891-02-23

Appellants,
VS.. No. 1901.
WILLIAMS EFT AL,
Respondents.
by THE COURT.
This was suit for the foreclosure of a
mortgage. The trial court gave judg-
ment for the defendants, and the plaint-
ifs appealed.
This is the second time the case has
come before the appellate court. The
former judgment, which was upon de-
murrer, was reversed upon the ground
hat 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 ad-
ministrator, and its approval by the
Judge, stopped the running of the statute
of limitations. (See. Y Cal. 544.) AS u
matter of course, nothing that was then
decided is open TO question now.
The facts material to the present appeal
are as follows: 1.-THE mortgage sought to
be foreclosed was made in 1877 by John
Connell and Sarah, his wife, to secure the
payment of note made by the former.
After the execution of the note and mort
gage they declared a homestead upon the
property, and subsequently the husband
died, leaving an estate of less than $4,000.
On the 18th of July, 1880, letters of ad-
Ininistration were issued to the wife, and
in accordance with Section l49l of the
Code of Civil Procedure, she gave notice
TO creditors TO present their claims with
in four months from the first publication
of the notice. The first publication was
on July "A, 1880, but there was no order
for publication until August 2. The
findings show sufficient publication
of the notice, but the evidence
does not, as will be explained be-
low On November 9TH q decree of
due notice to creditors was made. On the
10th, of the following December, the
plaintiffs presented their claim, and it
was allowed by the administrative as pre-
scented, and approved by the Judge and
filed on the next day. On the 9th of the
same month an order was made that the
homestead be set apart to the widow; and
little more than year afterwards she
died Letters of administration upon her
estate were issued to the defendant, Halli-
nan. and letters upon her husbands es-
tate were issued TO the edetendantW illiams.
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 Con-
nell, other than the land above described
as included i'll said mortgage"
Ii 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 claim
TO the wife's administrator. The counsel
seem TO have assumed that 1t was mol
necessary TO present such a claim, and fol-
lowing their lead we have confined our
examination to the husbands estate.
/. Inasmuch as homestead had been
declared upon the property it was neces-
sary to present claim against the hus-
bands estate, notwithstanding the waiver
contained in the complaint. Camp VS..
Grider, 62 Cal. 20; Bollinger vs.. Man
ming. 70 Cal. Z; Mechanics Building
Assn. VS.. King, So Cal. 440.) As has
been stated, the claim was presented and
allowed by the administrative, and APP
nroyed by the Judge. But the respon-
dents contend that such presentment and
allowance was after the time prescribed
nv law. and for that reason, of no effect.
We do not agree with respondents on
This point iT The o Fat bat paDlsai1h he aqder Ts5 aS
.ToI;ast;o, ri1oG was made until August I'd.
Now do not think nsatF sha5 og cd pnRieaton s q,
in adyanss OF Sne @ 0s Statute provides h @1 that at
the the notice smust be published as often as
tie Judge or court shay daeet, but !, not less
p See. I4eo.1 The legal period of publi-