Humboldt Savings & Loan Society v. Burnham

Citations

• 111 Cal. 343
• 43 P. 971
• 1896 Cal. LEXIS 584

Syllabus

<p>Foreclosure of Mortgage—Estates of Deceased Persons—Presentation of Claim—Pleading — General Demurrer.—In an action to foreclose a mortgage against the estate of a deceased person, an averment that the plaintiff did, within the proper time, present to the executrix its claim against the estate for the amount due and to become due upon the note and mortgage, and that the claim was duly verified in all respects according to law, and was duly allowed and approved by the executrix and judge, and was duly filed, etc., is a sufficient averment of the ultimate fact of presentation of the claim, as against a general demurrer, though the claim is not set out, nor attached to the complaint; and the objection that the complaint does not allege in terms that the claim contained a description of the mortgage, with a reference to the date, volume, or page of the record, or that it was accompanied with a copy thereof, cannot he urged upon general demurrer; but the allegation is sufficient to authorize proof as to whether the claim as presented was sufficient in form or properly presented.</p> <p>Id.—Identification of Note—Signature by Initials—Ambiguity and Uncertainty.—A complaint alleging that the defendants, named by their full names, “ made, signed, and delivered to plaintiff, the payee therein named, their certain promissory note, which said note is in words and figures following, to wit, ” setting out the note in Jtcea verba, sufficiently identifies the defendants as being the parties who signed the note, though the signature contains the initials only of the first names of the defendants; and the complaint is not demurrable for ambiguity and uncertainty as to the parties executing the note, upon the ground that the signatures might apply to entirely different persons.</p> <p>Id.—Expenditures for Taxes and Insurance—Presentation of Claim-In an action to foreclose a mortgage, it is proper to allow items of expenditures for taxes and insurance on the mortgaged property, pai