McMillan v. Hayward

Citations

• 94 Cal. 357
• 29 P. 774
• 1892 Cal. LEXIS 691

Syllabus

<p>Foreclosure of Mortgage — Estates of Decedents — Statute of Limitations— Death after Maturity of Note. — An action to foreclose a mortgage, commenced neither within four years after the maturity of the note, nor within one year after the issuance of letters of administration upon the estate of the deceased mortgagor, who died after the maturity of the note, and after the statute of limitations had commenced to run, is barred by section 337 of the Code of Civil Procedure, and the right of action is not saved by section 353 of that code.</p> <p>Id. — Extension of Limitation — Object of Statute Allowing One Year after Letters. •— The purpose of section 353 of the Code of Civil Procedure is to secure to a party who has a cause of action against a decedent one year after the appointment of a legal representative within which to bring his action, though the general limitation may have expired, and not to shorten the time limited by the general statute; and it does not have, and was not intended to have, any effect whatever upon his rights, where the general statute has not barred the right of action, and where it is not necessary to extend the time in order to give him his year, but in such case he is simply left to the general statute.</p> <p>Id.—Waiver op Recourse upon Estate—• Notice to Creditors.— Where, upon the foreclosure of a mortgage, it appears that no claim was presented against the estate of the deceased mortgagor, and in the complaint all recourse against any other property of the estate is expressly waived, the fact that notice to creditors was not published by the executrix cannot alter the rights of the mortgagee, nor affect the general statute of limitations.</p> <p>Executors and Administrators — Authority op Executrix after Marriage. — The authority of an executrix does not cease ipso facto upon her marriage, but she merely becomes incompetent, and liable to removal, and her powers as executrix continue until her removal.</p>