65 P. 123 | Cal. | 1901
Marian G. Norton and H.C. Morrill, defendants, appeal from the judgment of the superior court for the foreclosure of a mortgage executed by Marian G. Norton to the plaintiff, and for the foreclosure, on the cross-complaint of defendant Yocco, of a mortgage executed by Marian G. Norton to him.
During the progress of the administration upon the estate of Henry B. Norton, deceased, formerly husband of defendant *100 Marian G. Norton, the court in probate set aside about thirty-six acres of land as a homestead for the widow, Marian G. Norton, and her two minor children. The property thus set aside was community property; and, subject to the homestead, the title to an undivided one half vested in Marian G. Norton, and the title to an undivided one fourth each in the two minor children. One of the children was a minor at the commencement of the action, and would arrive at majority upon January 1, 1900. In 1894, Marian G. Norton executed the mortgage in suit to plaintiff, upon her interest in the homestead land. Subsequently, in 1895, she executed another mortgage upon the same land to her co-defendant, Yocco.
The decree of the court ordered a foreclosure of the liens of these mortgages, and decreed a sale of Marian G. Norton's interest in the land, providing further, however, that the purchaser at foreclosure sale should be entitled to enter into possession only when the youngest child attained majority.
Upon this appeal there is no pretense but that the money was paid upon the security of the mortgages, and has not been repaid. The contention merely is, that the mortgages so made by Marian G. Norton were nullities, and ineffectual to impose any liens upon the homestead property. This contention is conclusively answered by the case of Hoppe v. Fountain,
As overruling this authority, the appellants rely upon the case of Moore v. Hoffman,
The court refused to recall and set aside the execution and order of sale which it had issued. The grounds of the motion were that the judgment itself as rendered by the court was void. The court's denial of the motion was therefore proper.
The judgment and order appealed from are therefore affirmed.
Temple, J., and McFarland, J., concurred.