Perkins v. Onyett

Citations

• 86 Cal. 348
• 24 P. 1024
• 1890 Cal. LEXIS 1031

Syllabus

<p>Mortgage — Foreclosure — Husband and Wife — Community Property — Estates of Decedents — Presentation of Claims. — A mortgage of a homestead on community property, executed by husband and wife, must be presented to the executor of the deceased husband before an action can he brought for its foreclosure; and a judgment of foreclosure without such presentation is erroneous, even if all recourse against other property had been waived in the complaint, and a presentation of the mortgage note without a presentation of the mortgage is insufficient.</p> <p>Id.—Rejected Claim—Presentation — Substantial Compliance with Law — Action upon Mortgage Note.—-A person seeking judgment against the estate of a decedent upon a rejected claim must show at least a substantial compliance with each requirement of the statute on the subject of the presentation of claims; and where the holders of a mortgage note, in presenting it as a claim against the estate of a deceased mortgagor, make no attempt at complying with the provisions of the statute relating to the affidavit, by which a claim against the estate of a decedent must he supported, they cannot maintain an action against the estate upon the mortgage note.</p> <p>Id. ■—• Affidavit by Agent of Claimant — Defective Presentation. — Where the affidavit in support of a mortgage note which was presented to the executor of a deceased mortgagor and rejected as a claim against his estate was made by an agent of the claimant, and failed to set forth the reason why it was not made by the claimant, and stated that there were no offsets, “ to the knowledge of the claimant,” instead of “to the knowledge of affiant,” as required by the statute, the presentation is fatally defective, and will not support an action or judgment upon the note.</p>