65 Cal. 345 | Cal. | 1884
Dissenting Opinion
I dissent. I adhere to my opinion formerly filed, and desire it to stand as my opinion in
Petition for a rehearing denied.
The case was heard in Department and twice heard in Bank.
The following is the opinion of Department One, filed May 30, 1883.
One Baker owned a tract of land which he mortgaged to one Livermore, and then died intestate, leaving surviving him certain heirs at law. An administratrix of his estate was appointed, to whom the mortgage claim was presented, and the same was duly approved and allowed. Livermore then commenced suit against the administratrix to foreclose the mortgage. To that suit none of the heirs of the mortgagor were made parties. The proceedings in the action were regularly had and taken, and resulted in the entry of a decree of foreclosure in the usual form, the issuance of an order of sale, the sale of the mortgaged premises pursuant to its direction, and the execution of the sheriff’s deed in due course of time.
The question is, did the title to the property pass to the purchaser under the foreclosure proceedings ?
At the time of Baker’s death the statute concerning descents and distribution provided that “ when any person having title to any estate, not otherwise limited by marriage contract, shall die intestate as to such estate, it shall descend and be distributed, subject to the payment of his or her debts, in the manner therein stated, and at the same time another provision of our probate system was, and since has been, as follows:—“Actions for the recovery of any property, real or personal, or for the possession thereof, and all actions founded upon contracts, may be maintained by and against executors and administrators, in all cases in which the same might have been maintained by or against their respective testators or intestates.”
If Baker had lived, there can be no doubt that the action for the foreclosure of the mortgage could have been maintained
Judgment reversed and cause remanded.
The following is the dissenting opinion of Mb. Justice Thobhton, filed January 11, 1884.
I dissent.
It has been held in this State, at least since Beckett v. Selover, 7 Cal. 215, was decided, that, under the system of law prevailing with us, the real and personal estate of a person dying intestate vests in the heir, subject to the
Lead Opinion
For the reasons given in the opinion delivered when this case was before Department One of this court, the judgment is reversed and cause remanded, with directions to the court below to render judgment for defendant on the findings.