85 Cal. 610 | Cal. | 1890
This action is for the foreclosure of a mortgage. It appears that the appellant and her husband, in his lifetime, executed a mortgage to secure certain notes, made by the husband, upon a homestead declared upon community property. The husband after-wards died, and the wife qualified as the administratrix of his estate, and published the notice required by law for creditors of the estate to present their claims within four months of the publication of the notice. The holders of the notes and mortgage failed to present them, or either of them, within the time prescribed by the notice for allowance or rejection. After such neglect on their part, they obtained another mortgage from the defendant, Mrs. Ford, securing the payment of other notes, the amounts of which were made up of the original debt of the husband, and of the sum of $292, borrowed by the wife prior to the time she gave the second mortgage and notes. At the time she thus executed that mortgage and the notes it secured, she did not know that the first mortgage and notes were barred for the want of presentation, etc., but executed them in ignorance and mistake as to the law upon such, a matter. It is also alleged in the answer that she believed the first mortgage and notes to be valid, and the plaintiffs represented them so to be, and that she was liable to pay, satisfy, and discharge them when she executed the last notes and mortgage; but it is not alleged that at such time the plaintiffs knew that they were invalid, and concealed such knowledge from her.
Several months after the execution by the defendant of the notes and mortgage now under consideration, she for the first time discovered that they were barred; and as soon as she learned such to be the law, she notified the plaintiffs that she had executed these obliga
Assuming, as we must under the decision in Camp v. Grider, 62 Cal. 20, affirmed in Bollinger v. Manning, 79 Cal. 7, and Mechanics’ B. & L. Association v. King, 83 Cal. 443, that the'failure to present for approval and allowance the first notes and mortgage operated as a bar to the foreclosure of the mortgage, it then becomes important to determine whether the execution of the last notes and mortgage, so far as the amount of the first notes is concerned, was based upon an adequate consideration.
It is argued for the appellant that the notes first given were for the husband’s debt alone, and the wife’s joining in the first mortgage was to secure the payment of that debt, she not being liable on the debt, or receiving, so far as the record shows, any consideration whatever for the execution of the mortgage; that when the notes became barred, they were debts of her husband, not hers; that when the mortgage was barred, it was one (as to the debt secured thereby) on which she was a surety merely; that she was not bound, either legally or morally, to pay the debt of her husband, or to resecure its payment after it was barred; that she could obtain no benefit by so doing, but would be prejudiced, since by the non-presentation of the claims of the plaintiffs she was precluded from having the debt paid out of the estate, leaving out the homestead; that the notes' of the bus-
The further point is made, that, from the allegations of the answer, it appears that both parties were under a mutual misapprehension as to the law when the notes and mortgage now under consideration were executed, and that there is no finding upon the issue made. We think the appellant is right in both of these contentions, and that, for these reasons, the cause must be reversed. The mortgage, so far as it covered the amount included in the former mortgage on the homestead, was without con
Paterson, J., dissented.
Rehearing denied.