The record-union., 1896-05-02

out of community funds, the land would
| be the separate property of the wife.
| If the land was the separate property
/ of Calvin P. Hensley, deceased, then the
| effect of the homestead declaration by
his wife upon the land after his death
! would be to subject it ito the power
Of the court to assign it for limited
period to the family of the decedent
&C. c. P, Section 1474.) But it was not
| SO assigned. Neither the widow nor
| any member of the family asked it.
On the contrary, the widow, as execu-
| tr1x of the estate, petitioned the court
for leave to mortgage the property to
| raise money to pay debt which was
then claimed to be an existing lien on
| the property.
The title vested in his heirs, subject to
the exercise by the court of the power
| above mentioned. 1t was also subject
| to the debts of the decedent and the
expenses Of administration. Now, can
the widow, or the heirs who were rep
resented by her in her character as ex-
ecutrix, be heard to question the valid
ity of the mortgage ordered by the
court on her petition? Would it not be
a fraud upon plaintiff, now that his
| remedy upon his original mortgage is
barred, to repudiate the probate mort
gage? The first of these questions must
be answered in the negative, and the
other in the affirmative. lions VS.. Har-
bison, IL Cal. Dec. 1917
The homestead which existed in the
lifetime of the decedent, carved as it
was out of his separate estate by his
wife without his consent, ceased at his
death. Unlike a homestead taken from
community property, it did not vest in
the survivor, but vested in his heirs
| l4I4 c. c. P), subject to the power of
the court before mentioned, and free
from liability for any debts of the de-
| cedent, except those expressly provided
| Tor In the Civil Code. The debt due the
plaintiff was one of those thus pro-
vlded for. (Third subdivision, Section
1241, c. c.
But it is claimed that under Section
14Io OF the Code Of Civil Procedure the
PialntlHs original mortgage was not
| presented and allowed as other claims
| against the estate" and was therebynot
only barred but extinguished as
debt
Reading Sections 1,475 and 1.5OO to-
gether, and limiting the operation of
LOU to mortgages other than
|
effect to both sections, as the court in
Camp VS.. Grider (63 Cal, 26) said
might and should be done, the right to
foreclose the original mortgages would
seem clearly to have been barred by
reason of their non-presentation to the
| executrix, but the debt is not thereby
extinguished. It still remains as a
moral obligation, sufficient as consid-
| Grafton to SnnnOrf
| the time the probate mortgage was
made June 26, 1898 the demand on
| the original notes was not barred. These
| notes were not for four years past due
until June 26, 1898. Mrs Hensley was
| Joint maker with Calvin P. Hensley of
those notes, and she took one-half of
| all the property as the reSiduary legatee
under the will, Calvin 2. Hensley, Jr.,
! taking the other One-haif With her at
! least there was consideration for the
| new mortgage, and c. P. Hensley, Jr.
| makes no defense to this action.
! In this estate the inventory returned
| the appraised value of the land at S3S-
| o3O, and the personal property at SO, 200
| And the testimony shows that the
| homestead when it was selected was
Of the value of S11 600
The eXecutriX did not institute pro-
ceedings under Section 1476, but in
| April, 1893, proceeded under Sections
LOTT and 1,51S, Code of Civil Procedure,
and executed the note and mortgage
upon which this action is brought
The sixth subdivision of Section 1878
gives ample protection to this kind of
mortgage. 1t provides that if the court
has jurisdiction to administer the es-
tate, it has effectual Jurisdiction to
make the order (Thomas VS.. Parker, 81
Cal. 1850, and that such Jurisdiction
| shall conclusively inure to the benefit
| of the mortgage, his heirs and as
| signs" and that mo irregularity in the
proceedings shall impair or invalidate
| the same, or the note or notes and
/ mortgage given in pursuance thereof;
and the mortgagee. his heirs and as
| signs shall have and possess the same
| rights and remedies on the note or
| notes and mortgage as if it had been
made by the decedent prior to his death,
the minor after reaching the age of
majority or the incompetent person
when legally competent"
| 1t provides that upon the foreclosure
of such a mortgage there shall be no
| judgment for a deficiency unless the
mortgage was given to pay or renew an
| existing mortgage, given to secure
| debt which had been allowed and ap--
proved as claim against the estate.
In the proceedings by which the mort
| gage in suit was made no mention was
made of the existence of homestead
| 1t was not disclosed to the court then.
| nor in any of the previous proceedings
| III the course of the administration of
the estate In Ions VS.. HARRISON, above
| cited, the court said: 1T is, therefore
! clear the court has jurisdiction over
| the homestead for some purposes, and
it seems to follow that if the court
from ignorance of the fact that it was
| homestead, or by inadvertence or
| mistake of law made an order not au-
thorized by the statute, its proceedings,
| however erroneous, would not be with
| out Jurisdiction, and hence would be
| valid against a collateral attack"
If the court went beyond its authority
in authorizing this mortgage, by reason
of the existence of the homestead, it did
| so at the instigation of the mortgagor,
who ignored the homestead, Withholding
| knowledge Of it from the court and ac
cepted the benefits of the mortgage, to
| the injury of the mortgage.
Under such circumstances and in view
of the provisions of section 1878, to some
| of which reference has been made, I
am of the opinion that the defendant,
| Mary A. Hensley, personally and in her
| character as executrix of the estate of
C. p. Hensley deceased is estopped
| from denying the validity of the mort
| gage.