59 P. 774 | Cal. | 1899
This appeal is from the judgment which was entered upon overruling defendants' demurrer to the amended complaint, the defendants declining to answer.
The action was to foreclose a mortgage given by one J.R. Sweet to secure his promissory note for the sum of five hundred dollars. In addition to the usual allegations in regard to the mortgage, it is averred in the complaint that J.R. Sweet died intestate on the 4th of October, A.D. 1895, leaving as his only heirs at law his wife, Urena Sweet, and two minor children, to wit, Celia Sweet and Alfred Kenneth Sweet, who are the defendants herein.
It is further alleged that letters of administration were issued upon the estate of J.R. Sweet, deceased, to the defendant Urena Sweet on the twenty-third day of October, 1895, and that thereafter, to wit, on the twenty-third day of April, 1897, "the said Urena Sweet obtained her final discharge as administratrix of said estate, and said estate was settled, and the administration thereof was closed without any provision whatever being made for the payment of said mortgage, and that at this date there is no qualified or acting administrator of said estate."
It is further shown that at no time has there been property or money in the estate which could have been applied to the payment of the debt, and that the estate possessed no assets except the property set apart for the use of the family, and the mortgaged premises.
And, further, that on the seventh day of January, 1896, "the superior court in and for the county of Modoc, by its decree regularly made, set apart said lands described in said mortgage *334 as a homestead to the defendant in this action," and these defendants are the only persons who have, or claim to have, any interest in said land. Plaintiff waives all claim to a deficiency judgment.
A special demurrer was interposed, which was sufficient to raise the questions presented here.
The first point made is that the administratrix of the estate of J.R. Sweet should have been made a defendant. It appears from the complaint that the entire estate had been regularly set apart to the use of the family of the deceased, either as property exempt from execution, or as a probate homestead, and that the estate had never had other assets. And also that the administration had been closed, and there is now no administrator and no estate which could be administered. The estate of J.R. Sweet, therefore, if it can be said that there is such a thing, could not be interested in the matter.
It is also contended that the mortgage cannot be foreclosed because it is upon the homestead, and it does not appear that it was ever presented to the administratrix for allowance. For this proposition, with other cases, Bollinger v. Manning,
But we are not put to the necessity of determining that question here, for it is not averred in the complaint that the homestead had been selected and declared prior to the death of J.R. Sweet, and there is no presumption that it was. A pleading is to be taken most strongly against the pleader, in that it must be held that a plaintiff has fully stated his cause of action; but this does not warrant us in presuming facts not averred at all. The averment is simply that the court set apart a homestead. If there was no other fact in reference to the matter this was a probate homestead, and in such case a presentation of the mortgage was not required. (McGahey v. Forrest,
The judgment is affirmed.
*336Henshaw, J., and McFarland, J., concurred.