Harp v. Calahan

Citations

• 46 Cal. 222
• 1873 Cal. LEXIS 163

Syllabus

<p>Mortgage Claim must be Presented for Allowance. — A mortgage debt, which is a lien on property, the title to which is in the estate, or in which the estate has a residuary interest which constitutes a fund for the payment of debts, and is or may be subject to distribution, must be presented to the executor or administrator, and Probate Judge, for allowance, within the time required by the Probate Act, or it cannot be enforced in equity, even if no claim is made against the estate for a deficiency.</p> <p>Presenting Mortgage Claim Against Estate. — The cases heretofore decided by the Supreme Court, in relation to the presentation of a mortgage claim for allowance by the administrator or executor (except Pule v. Shipley, ante, p. 154), refer to mortgages which were a lien on property which did not belong to the assets of the estate.</p> <p>A Mortgage.—A mortgage does not convey the title to the property mortgaged, but only creates a lien on the property.</p> <p>Complaint in Action to Enforce Mortgage. — A complaint, in an action against an administrator, to enforce the lien of a mortgage, need not aver that notice to creditors has been published, but must aver the presentation of the mortgage claim for allowance.</p> <p>Wife’s Interest in Community Property. — The wife’s interest in community property is subject to the payment of the debts of the estate, and is an asset for that purpose in the hands of the administrator.</p> <p>Waiver of Presentation op Claim. — An administrator cannot waive the necessity of presenting a claim for allowance.</p> <p>Complaint in Action to Enforce Mortgage.—An allegation in a complaint, in an action brought against an administrator to enforce a mortgage given, by the intestate, that the administrator waived the presentation of the mortgage claim for allowance, is irrelevant.</p>