Ellissen v. Halleck

Citations

• 6 Cal. 386

Syllabus

<p>Mortgages and liens of record form no exception to the rule prescribed by § 136 of the Act to regulate the estates of deceased persons ; and the claims secured by them must have been presented to the executor or administrator, and rejected by him, before an action can be maintained on them.</p> <p>Where a bill of foreclosure of a mortgage, made by the deceased, is filed against his executor, and no averment of presentation and rejection of the account is made in the bill, it is demurrable.</p> <p>The general right to sue an administrator being taken away by the State, the declaration must bring the case within the exception, so as to give the Court jurisdiction.</p> <p>A 'demurrer on the grounds “ that the Court has no jurisdiction, either of the persons of the defendants, or of the subject of the action,” and “ that the complaint does not state facts sufficient to constitute a cause of action,” is sufficiently explicit, under the rule of construction adopted by the Courts of this State.</p>