Bollinger v. Manning

Citations

• 79 Cal. 7
• 21 P. 375
• 1889 Cal. LEXIS 659

Syllabus

<p>Married Women—Certificate of Acknowledgment — Insufficiency of — Examination without Hearing of Husband. -—The certificate of the acknowledgment of a married woman must show that the certifying officer, upon an examination without the hearing of her husband, made her acquainted with the contents of the instrument. A certificate that she was by the officer “first made acquainted with the contents of said instrument, and thereafter she duly acknowledged to me, upon examination, separately, apart from, and without the hearing of her husband,” etc., is insufficient.</p> <p>Id.—Conveyance not Properly Acknowledged is Void.—A deed or mortgage of a married woman not properly acknowledged by her is void.</p> <p>Homestead—Community Property—Title Vests in Wife on Death of Husband — Order Setting Aside. — On the death of the husband, the title to a homestead declared on community property vests absolutely in the surviving wife; and an order of court made in the matter of the husband's estate, purporting to set aside the homestead property “for the use of the family,” does not in any way change or affect her rights as survivor, but merely excludes the property from administration.</p> <p>Id.—Foreclosure of Mortgage on Homestead — Claim must be Presented against Estate of Mortgagor — Death Pending Foreclosure. —Under sections 1475 and 1502 of the Code of Civil Procedure, no action to foreclose a mortgage on the homestead of a deceased mortgagor can be maintained, unless the claim secured by the mortgage be first duly presented for allowance to the personal representative of the mortgagor. And this is so, notwithstanding the action of foreclosure had been commenced, and a lis pendens had been filed, prior to the death of the mortgagor, and the plaintiff expressly waives all recourse against any other property of the estate.</p> <p>Id.—Presentation not Excused when Entire Estate is Homestead.— The fact that the estate had no assets other than the mortgaged homestead which coul