Bull v. Coe

Citations

• 2 Cal. Unrep. 807
• 15 P. 123
• 1887 Cal. LEXIS 850

Syllabus

<p>Homestead — Mortgage — Foreclosure — Presentment of Claim Against Decedent.—Under Code of Civil Procedure, section 1475, providing that claims secured by liens or encumbrances “on the homestead” must be presented and allowed as other claims against the estate, a deed absolute, intended as a mortgage, executed by a husband and wife upon the wife’s separate property, which had been declared a homestead, to secure the debt of the husband, cannot be foreclosed after the death of the husband, no claim having been presented against the estate.</p> <p>Homestead — Foreclosure of Mortgage — Estate of Decedent.—■ The provision of Code of Civil Procedure, section 1500, that an action, may be brought to enforce a mortgage or lien against the property of a deceased person where all recourse against any other property of the estate is expressly waived in the complaint, has no application' to a mortgage upon a homestead, whether a probate homestead or one selected and recorded before the death of decedent.</p> <p>Homestead—Mortgage—Failure to Present Claim to Administrator.—Where the homestead, upon which the foreclosure of a mortgage is sought after the death of one of the mortgagors, has been released from the lien of the mortgage by the failure of the mortgagee to present his claim against the estate within the time limited for that purpose, the foreclosure proceedings cannot be sustained on the ground of an abandonment by the attempt of the survivor to get a homestead on other property after the expiration of the time for t'he presentation of claims.</p> <p>Homestead.—By Civil Code, Section 1243, a Homestead can be Abandoned only by a declaration of abandonment or a grant thereof; and the execution of a deed of the homestead absolute in form, but intended as a mortgage, is not an abandonment.</p> <p>Homestead—Enforcement of Mortgage for Excess.—Where a homestead has been released from the lien of a mortgage by the failure of the mortgagee to present his claim against the es