The record-union., 1894-02-03
MUST PAY THE MORTGAGE.
Judgment Against Josephine M. King
for $1,000 and Interest.
Ahe Mechanics Building and Loan
Association Wins Case of Quite
Long Standing.

Long Standing.
superior Judge Johnson yesterday rem
cered judgment in the suit of the Me-
chanics' Building and Loan Association
VS.. Josephine NJ. King and A. NJ.
johnson, an action of long standing.
The suit was brought to recover $1,000
on note executed to the association
In sFebruary, 1885, by Mrs. King and
her husband, Manuel J. King. To secure
payment on the note Mrs. King and her
husband gave mortgage on their resi-
dence property on Fourth street. be-
tween n and O. R. T. and w. 81. Devlin
were counsel for the plaintiff, and Albert
NJ. Johnson for the defense.
Manuel King died before the note was
matured, and his wife was appointed ad-
ministratrix of the estate. The usual no.
tice to creditors was made, but the Build
ing and Loan Association failed to pre-
sent its claim within the time allowed by
law.
When the claim was presented, how
ever, Mrs. King, acting under the advice
of her legal adviser, refused to make
good the amount of the note. Suit was
brought by the association for the recoy
cry of the S1, 900, but the association failed
to recover a Judgment. The case was ap-
peaIed to the Supreme Court and the de-
cision Of the lower court was affirmed.
Another suit was brought against the
estate by the association on foreclosure
proceedings before Superior Judge John
son and was tried and taken under ad-
ViSement.
Judge Johnson rendered judgment in
favor OF the plaintiff for the full amount
on both the note and mortgage. Follow
ing is the decision in full:
THE DECISION.
This is an action to foreclose a mort
gage executed by the decedent and his
Vile TO plaintiff, corporation. The suit
is against defendant, Josephine NJ. King,
individually, and against her in the
represen tative capacity OF executrix of
her husbands will. 1t does not appear
what interest defendant Johnson has in
the controversy.
During the progress of the probate
proceedings this court set aside the mort
gage premises to defendant, Josephine
King, as a homestead, declaration hav-
ing been fled during the lifetime Of de-
ceased, the same being community prop
erty.
The plaintiff in another action COM
menced proceedings in this court against
defendant in her individual and repre-
sentative capacity to foreclose the mort
gage without ever presenting the claim
upon which the mortgage was founded to
the executriX for approval as provided IN
the Code of Civil Procedure. Judgment
was rendered for the defendant in that
action and an appeal was affirmed by the
Supreme Court
Plaintiff after the termination of that
case presented a claim in due form to the
executrix of the estate and upon her re-
fusing to approve the same brought this
suit.
Defendants claim that this action was
barred by the former one referred to, and
that the claim against the estate was pre-
sented too late.
The first point to be disposed of is
whether the defendants claim Of estoppel
is good.
In order to make the plea of estoppel
good, it is essential "That the issue in the
second action upon which the judgment
is brought to bear was material issue III
the first action necessarily determined by
the Judgment therein lFreeman on
Judgments, Section 256.)
The former judgment is conclusive
only as to the facts directly and distinctly
put in issue, and the finding OF which is
necessary to uphold the judgment; id.
Section 257).
This action puts in issue as one of the
facts necessary to determine the case, the
presentation and rejection OF the claim
upon which the action was based. Unless
the affirmative of this proposition is
established by the plaintiff it cannot
maintain its action.
In the former case no such issue was
raised. That action proceeded upon the
theory that the promissory note was Sc
cured by mortgage, and TO Its toreclos-
ing it's lien no presentation was neces-
sary.
Plaintiff was met in court by the fact
that the mortgaged premises was home
stead which, upon decedenPs death,
vested in the widow. In order to hold
homestead in a foreclosure suit, where
one of the spouses is dead, presentation
of the claim against the estate Is first
deemed necessary. The issue raised III
that case was that the premises were not
subject to plaintiff lien by reason of its
homestead character.
1t is claimed, however that the fact was
an issue in the former case. In that ac-
ton plaintiff, in It's complaint, expressly
waived any claim against the estate ex-
cept that which it held by its mortgage
lien, the lien being upon the homestead
premises could not be forcelosed without
claim was first presented.
There was no allegation in plaintiffs
complaint of presentation of the claim;
none was proven. The allegation in de-
fendant's answer that no claim was pre-
sented by defendant was irrelevant, and
the finding thereon, as well as the find
ing that legal notice had been given TO
creditors, was simply immaterial and
forms no part Of the judgment. (Hobbs
VS. Duff, % Cal. 296: Herman on Estop-
pels, Sections 276-7-S-9)
The action of plaintiff was premature,
because its right of action could not ac-
crue to it until it first presented it's claim
to the eXecutrix Of the estate. 1t had not
done so at that time, hence that action
does not constitute an estoppel. Free
man on Judgments, Secs. 263 and 26S;
Black on Judgments, Sec. IA
The next question TO be considered is
whether the claim in this case was pre-
sented in time. The plaintiff claims that
it has presented it's claim in due form and
within the statutory time.
In the probate proceedings in the
King estate an order was made authoriz-
ing notice to creditors to be given, but
did not specify how long the notice should
be published. A notice was published
for the period of four weeks, and upon
such publication a decree Of notice to
creditors was made.
The statute provides that the notice
''must be published as often as the Judge
or court shall direct, but not less than