Athearn v. RyanAthearn v. Ryan
- Reporters:
- , ,
- Before:
- Shaw
This is аn action to quiet title. On August 31, 1899, the defendant was the wife of Timothy Byаn and resided with her husband on the premises described in the complaint, the same being community property. On that day the defendant executed and caused to be recordеd a declaration of homestead in due form, claiming thе said property as a homestead. Afterwards, on June 20, 1902, thе defendant and her said husband executed to the plaintiff a note for $680, and, in order to secure the same, executed to certain other persons, as trustees, a deed of trust to the said property. Thereafter, on .December 27, 1902, the said Timothy Byan died, and in due course of time administration was granted on his estate, and notice to creditors given by the administrator. On March 11, 1904, an order was made in said administration proceeding, setting apart the said property to the defendant as a homestead. Afterwards, and beforе the commencement of this action, the note afоresaid being due and unpaid, the trustees named in said deed of trust, in pursuance of the power conferred upon thеm by the terms of said deed of trust, sold and conveyed the property to the plaintiff.
The plaintiff claims title by reason оf the deed from the trustees, and the defendant claims that the said deed is void because of the fact that after the giving of notice to creditors and prior to making the sale, no claim for the debt secured by said deed of trust was ever presented for allowance to the administrator оf the estate of said Timothy Byan. It will *556 be seen from this statement of facts that the ease comes exactly within the scope of the decision in Weber v. McCleverty, 149 Cal. 316, [86 Pac. 706]. It was held in that ease that, under circumstances precisely similar to those in the cаse at bar, it was unnecessary to present a claim for a debt secured by a deed of trust, to the administrator of the estate of the deceased husband, and that a deеd by the trustees in the execution of the power contаined in the deed of trust, made upon a failure to pay the debt when due, was valid and effectual to convey the titlе to the homestead, notwithstanding the failure to present suсh claim. The only difference between the facts in that сase and the facts above stated, is that in that casе the deed of trust was executed by the husband alone priоr to the declaration of homestead, while in this casе the homestead was filed first and the deed of trust was thereаfter executed by both husband and wife. The principle on which that case rests is that a deed of trust is not a lien or encumbrance on the homestead within the meaning of those tеrms as used in section 1475 of the Code of Civil Procedure, which rеquires a presentation of a claim against the estate as a condition precedent to the enforсement of a lien or encumbrance on the homestead. There is no difference in the legal -effect of thе deed of trust considered in that case and that here involved. Upon the principle of that case the judgment of the lower court was correct.
The judgment is affirmed.
Sloss, J., Angellotti, J., Henshaw, J., and Lorigan, J., concurred.