Fоreclosure of mortgage. Plaintiff had judgment of foreclosure as to the defendant the administrator of the estate of William Teague, but judgment was denied as against the interest of defendant Hattie Teague. Plaintiff appeals from the judgment. The following facts appear from the findings and proceedings: In 1883 William and Mary Teague were husband and wife; the mortgaged premises belonged to them as the property of the community; in that year Mrs. Teague duly filed a homestead on thе premises; on August 14, 1889, William and Mary Teague executed to plaintiff’s assignor, the German Savings and Loan Society, their joint promissory note, payable one year after date, and also on that day executed their mortgage on the premises in question to secure the payment of said note; in February, 1894, William Teague died testate; thereafter defendant, Luther Teague, was appointed administrator of the estate of William with the will annexed, and thereafter—to wit, August 2, 1894—by an оrder duly given and made, the court set apart the premises as a homestead to Mary Teague, widow of deceased, and to Hattie Teague, their sole minor child; within four months after the appointment of said administrator, plaintiff’s assignor duly filed its claim against said estate upon and in respect of said promissory note and mortgage, and on August 2, 1894, the claim was allowed and approved by said administrator, and on September 3, 1894, was duly allowed by the judge; on January 10, 1897, the said Mary conveyed to the *473 said Hattie the said mortgaged premises, and the latter ever since has been, and now is, the exclusive and sole owner and in possession of said lands and premises, but whatever interest said Hattie has she derived under and by virtue of said deed of said Mary, her mother, and widow of deceased. The complaint was filed December 2, 1897. The answer pleaded the statute of limitations as to Mary and Hattie Teague and title in the latter under the deed of Mary Teague.
As conclusions of law, the court found that the action was barred as to Hattie Teague by the provision of section 337 of the Code of Civil Procedure, and, as to her, plaintiff is not entitled to judgment, but is entitled to a decree of foreсlosure as against the administrator as such, the judgment in no wise to prejudice the title of Hattie Teague, which she asserts adversely to the title of said Luther Teague, administrator of said estate. As to the estate, it is conceded by respondents that the statute of limitations ceased to run, under the provision of section 1569 of the Code of Civil Procedure, which reads: “ ... No claim against any estate, which has been presented and allowed, is affected by the statute of limitations, pending the proceedings for the settlement of the estate ...” The contention of appellant is, “that the presentation of a claim against a deceased man’s estate operates to place the obligаtion of the deceased outside of the pale of limitation for all purposes, ’ ’—in other words, that the statute did not run as to Mary Teague, the joint maker of the note and mortgage, but was suspended as to her by virtue of the section above quoted. It is further claimed that the mortgage is but “an incident to the note, and that there is but one action upon a note and mortgage, which must be as provided in section 726 of the Code of Civil Procedure. And the rule of the codes as to limitаtion for the recovery of debts secured by mortgage is, that the mortgage can be extinguished by lapse of time within which an action may be brought on the note, and in no other way. There is not, therefore, as heretofore, one statute of limitation on the note and another on the mortgage.” Suppose William had not died, and it had become necessary to foreclose the mortgage. Without doubt, if Mary had not been made a party before the statute had run, her interеst in the premises would have been unaffected by a foreclosure against William alone. The wife acquires an
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estate of some sort by virtue of a homestead declared on community property; this estate she holds with her husband jointly, whо has a like estate. It has some of the incidents of a joint tenancy, notably the right of survivorship. While the husband and wife are living the homestead can be destroyed only by the joint act of both husband and wife. Whatever may be the estate of the wife, it is distinct from the estate of the husband, though held jointly. “If the homestead selected by the husband and wife, or either of them, during their coverture, and recorded while both were living, was selected from the community property, ... it vests, on the death of the husbаnd or wife, absolutely in the survivor.” (Code Civ. Proc., see. 1474;
Sanders
v.
Russell,
In
Sichel
v.
Carillo,
Appellant submits “that as the mortgaged premises were a-homestead, plaintiff was bound not only to present his claim as he did, but under section 1475 of the Code of Civil Procedure first to exhaust the general assets of the estate in the probate court before resorting to foreclosure and sale of the homestead.” It is hence, argued “that plaintiff could safely have awaited the conclusion of the probate proceedings.” It is allеged in the complaint, and found by the court, 'that the funds of the estate are not sufficient “to pay said mortgaged indebtedness or any part thereof, and that in order to pay the same it is necessary that the said mortgaged premises, and thе whole thereof, be sold as prayed for.”
It may be true that where there are funds of the estate sufficient to pay some proportionate part of the mortgage debt in common with other claims against the estate, the court would upon answer of the defendant, on proper showing, stay final action in the foreclosure suit until such proportion could be ascertained and paid. Such plea, however, had it been *477 made in this case would not have entitlеd defendant to have the.action dismissed or entitle her to judgment on the merits. Nor can the section be construed as forbidding the commencement of the foreclosure proceeding. In the present case, in order to escape the operation of the statute of limitations as to Mary Teague or her grantee, the action should have been begun within the statutory period of four years.
The judgment should be affirmed.
Gray, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the "judgment is affirmed.
McFarland, J., Angellotti, J., Shaw, J., Henshaw, J., Van Dyke, J., Lorigan, J.
Rehearing denied.