Whitmore v. San Francisco Savings Union

Citations

• 50 Cal. 145
• 1875 Cal. LEXIS 111

Syllabus

<p>Effect of xot Ebesbxtih& Cbaim: to Executob fob Abbowaxce.—The failure of a creditor of an estate to present his claim to the executor for allowance, within the time fixed by the statute after publication of notice to creditors, does not extinguish the debt xvithin the sense in which payment would extinguish it, but merely takes away the remedy of the '■ creditor.</p> <p>When Equity will not Compel a Cbeditob to give up his Sbcueities.—■ If a debtor, before his decease, had conveyed land to a person in trust, to secure his promissory note, and, after his decease, the creditor fails to present his claim to the executor for allowance within the time fixed by the statute after publication of notice to creditors, the executor cannot invoke the power of a court of equity to compel the creditor to surrender his security, or to enjoin the creditor from selling the land under a power contained in the deed of trust.</p>