103 P. 812 | Cal. | 1909
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *799 In 1868 Luis Raggio made a declaration of homestead upon the southwest quarter of section 4 in township 13 south of range 4 east, Mt. Diablo base and meridian, containing 160 acres of land. The document was duly recorded in Monterey County and was transcribed according to law in the records of San Benito County after that county was created. In December, 1894, Luis Raggio and Maria Ynezia Raggio, his wife, mortgaged said land, together with other lands adjoining, making in all about 475 acres, to Fredericka Palmtag, to secure the payment of a certain promissory note of four thousand dollars, executed by both of them, payable four years after date, with interest at the rate of ten per cent per annum, compounding semi-annually.
In 1895 Luis Raggio died leaving as his survivors his wife, Maria Ynezia Raggio, several children and the children of a deceased daughter.
A son, Luis Raggio, one of the plaintiffs in this action, and William Palmtag were duly appointed and qualified as administrators of the estate. They filed an inventory of the property, including the tract described in the declaration of homestead, but failed to mention the fact that the homestead estate existed. Within the time prescribed by law, however, Fredericka Palmtag presented a purported claim based upon her note and mortgage. This was allowed by the administrator and approved by the court.
In October, 1896, Maria Ynezia Raggio died, leaving the same surviving children and grandchildren as did her husband, Luis. In February, 1897, after her death, the administrators of Luis Raggio's estate obtained an order of court to sell all the property of the estate, which consisted solely of the real estate subject to the mortgage of Fredericka Palmtag. This land was finally sold to the mortgagee for the sum of *800 $5318, being $218 in excess of the amount of her claim. She was induced to make this bid by the administrators, as the estate owed $218 more than the money on hand. The real value of the property as found by the court was, at that time and at the time of the trial of this action, three thousand dollars.
In February, 1899, this action was commenced by Luis Raggio who had acquired all of the interests of his brothers and sisters. He was joined in the action by his minor nephews and nieces, represented by their guardian. Defendant Johnson was a tenant under Fredericka Palmtag and it is not necessary for the purposes of this case to discuss his interest.
Defendant Palmtag answered and by cross-complaint set up the existence of her note and mortgage and the proceedings in the estate of Luis Raggio, deceased. She prayed that the note and mortgage be restored and reinstated and that the mortgage be foreclosed. Judgment was given in favor of defendant and cross-complainant. This appeal is from the judgment and from an order denying a new trial.
The trial court found that Fredericka Palmtag was a mortgagee in possession and the most serious problems in this case arise out of the discussion of this finding. Appellants contend that the claim presented against the estate of Luis Raggio, deceased, by Fredericka Palmtag was so deficient as to be a nullity. Section 1497 of the Code of Civil Procedure prescribes the requisites for such a claim as follows: "If the claim or any part thereof be secured by mortgage, or other lien which has been recorded in the office of the recorder of the county in which the land affected by it lies, it shall be sufficient to describe the mortgage or lien, and refer to the date, volume and page of its record. If, in any case, the claimant has left any original voucher in the hands of the executor or administrator, or suffered the same to be filed in court, he may withdraw the same when a copy thereof has been already, or is then, attached to his claim. A brief description of every claim filed must be entered by the clerk in the register, showing the name of the claimant, the amount and character of the claim, rate of interest, and date of allowance."
In the purported claim here considered the property is not accurately described; the date of the mortgage is given but *801 not the book and page of the record in which it is copied; and although the note is set out in the claim, the names of the mortgagors and mortgagee are not given. In relation to this claim the court below found: —
"That at the time of the presentation of the said claim described in said cross-complaint, and presented with and accompanying the same, said Fredericka Palmtag did present and leave with the said administrators of the estate of Luis Raggio deceased, the original note described in said cross-complaint and the original mortgage described and set out in said cross-complaint, and that there was at that time, indorsed on said mortgage, the place, date, volume and page of its record in the records of San Benito County; that except as herein found said claim did not refer to the date, volume or page of such record.
"That at the time of the sale of the real estate described in, and set forth in the answer and cross-complaint of Fredericka Palmtag by said administrators, to defendant, Fredericka Palmtag, plaintiff, Luis Raggio, then one of the administrators of the estate of Luis Raggio, deceased, had actual notice that the homestead, described in the cross-complaint of Fredericka Palmtag herein, had been declared upon the property therein described."
Appellants' theory is that the jurisdictional prerequisites of the presentation of a claim in due form having failed, the lien of the mortgage was forever lost, citing Estate of Turner,
In Ions v. Harbison,
"But section 1475 of the Code of Civil Procedure provides that, `if the homestead selected and recorded prior to the death of the decedent be returned in the inventory appraised at not exceeding five thousand dollars in value, or was previously appraised as provided in the Civil Code, and such appraised value did not exceed that sum, the superior court must, by order, set it off to the persons in whom title is vested by the preceding section'; and also provides for the payment of existing liens thereon. It is therefore clear that the court has jurisdiction over the homestead for some purposes; and it seems to follow that if the court, from ignorance of the fact that it was a homestead, or by inadvertence, or mistake of law, made an order not authorized by the statute, its proceedings, however erroneous, would not be without jurisdiction, and hence would be valid as against a collateral attack." In that case, plaintiff, a grantee of the surviving husband, stood in the same position as that occupied by the plaintiffs here. There, as here, it was asserted by appellant that the order of *803 sale was made without the proper performance of acts giving the court jurisdiction. The requirements of section 1537 of the Code of Civil Procedure were not strictly followed. In commenting upon this objection the court said: —
"There were many errors and irregularities in the proceeding, but, as was said in Burris v. Kennedy,
The title to the mortgaged property having vested in the widow of Luis Raggio, deceased, on his death, subject to the mortgage, it follows that Mrs. Palmtag had the right to foreclose her mortgage upon that property. This she proceeded to do under section
In the cross-complaint there was an allegation in the usual form that N.C. Briggs and J.L. Hudner had or claimed to *805 have some interest or estate in the premises described in Mrs. Palmtag's mortgage, but that such claims or interests were subject and subordinate to the Fredericka Palmtag mortgage and the lien thereof. In their answer to the cross-complaint they merely deny that their claims are subsequent to those of the cross-complainant. The rights of Messrs. Briggs and Hudner do not seem to have been litigated. No specific claim or lien or demand of any kind was set up by them either by pleading or in any other manner. We think that the issue demands that whatever rights they had should have been asserted by Messrs. Briggs and Hudner and proof as to the priority of their claims should have been introduced by them. Having failed to present any such proof, they cannot now complain of the finding against them. The demandant makes out a prima facie case when he proves the execution and delivery of the note and mortgage, and the other formal matters required by the statute. (2 Jones on Mortgages, sec. 1295;Burridge v. Fogg, 8 Cush. (Mass.) 183.)
In the case of Foster v. Bowles,
Objection is made to the amount of the judgment on the ground that interest was waived at the time of the presentation of the claim of Fredericka Palmtag against the estate of Luis Raggio deceased. The demand was for four thousand dollars " int." The approval by the administrators and the allowance by the court were both expressed in the same manner, using the abbreviation "int." It is contended that this is a meaningless collocation of letters, not sufficient to support the demand, the approval, or the allowance. Section
There is no merit in the contention that because the allowance of interest was made on August 13, 1895, no further interest could be claimed after that date. There is nothing in Jones v.Walden,
There are no other specifications of error that require special attention.
The judgment and order are affirmed.
Henshaw, J., and Shaw, J., concurred.
Concurrence Opinion
I concur in the judgment. I am of the opinion that it should here be held that there was a sufficient presentation of the mortgage claim against the estate of Luis Raggio, deceased, to save the rights of the mortgagee, and that it was not necessary to present any claim against the estate of Maria Ynezia Raggio.
Rehearing denied.
In denying a rehearing, the court in Bank rendered the following opinion on the twenty-ninth day of July, 1909. —
Addendum
The petition for a rehearing is denied. In response to the points therein presented we think it proper to give as an additional reason for the affirmance of the judgment, that stated in the concurring opinion of Justice Angellotti. The court below held, in effect, that the mortgage claim was duly presented for allowance against the estate of Luis Raggio, deceased. This was fully established by the findings *807
and also by the evidence, which is not contradicted, and which is somewhat more specific than the findings. The claim was properly verified. It attempted to state the contents of the mortgage, and the statement was amply sufficient to identify it, except for the fact that the names of the mortgagor and mortgagee were not given and that one of the parcels of land mortgaged was incorrectly described, the mistake being obviously a mere clerical inaccuracy. But the claim was presented to the administrator in a sealed envelope and with it were inclosed the original note and mortgage, mentioned in the statement of the claim. The provisions of section 1497 of the Code of Civil Procedure regarding the reference to the record of the mortgage, in the statement of a claim secured thereby are enabling and not restrictive or exclusive. The purpose of the reference is to afford means whereby the administrator may ascertain the terms of the mortgage and the land it covers, and the statute allows a mere reference to the record instead of the full statement of its terms, which might otherwise be necessary. It is plain that, although any other mode of statement which fully informs the administrator of the terms of the mortgage would be sufficient, the claimant did not, in the present case, make the required reference to the book and page of the mortgage record, but instead thereof she afforded much more satisfactory means of information of its contents. She inclosed, with the claim, the original note and mortgage, all being in the same envelope and sealed. This made the note and mortgage as effectually parts of the claim as if they had been attached or fastened thereto in the ordinary manner, and it gave the administrator full knowledge of its contents. This was the object to be attained by the citation to the record. It was thus fully accomplished by more satisfactory evidence and the presentation was complete. (Estate of McDougald,