Dreyfuss v. Giles

21 P. 840, 79 Cal. 409, 1889 Cal. LEXIS 741

• Court: California Supreme Court
• Decided: June 1, 1889
• Docket: No. 12430
• Status: Published

Opinion

Works, J.

This is an action to foreclose a mortgage. The complaint alleges the death of the mortgagor, the settlement of the estate, the distribution of the mortgaged property to his daughter, an only heir, and the sale of the mortgaged property by her to the defendants in this action. It is also averred in the complaint that the mortgage was not due at the time the estate was closed, and final distribution made, and was not presented as a claim against the estate. The complaint expressly waives all claims against any other property of the estate except the lands described in the mortgage. In their answer, the defendants plead the settlement and final distribution of the estate as a bar to the plaintiff’s right to recover, and this is the only question made on this appeal.

• It was not necessary for the plaintiffs to present their mortgage as a claim against the estate, and their failure to do so, and the settlement and distribution of the estate, was no bar to their right to foreclose the mortgage. (Code Civ. Proc., sec. 1500; Security Savings Bank v. Connell, 65 Cal. 574.)

It is evident the appeal in this case was taken for delay.

Order and judgment appealed from affirmed, with ten per cent damages.

Beatty, C. J., Sharpstein, J., McFarland, J., and Thornton, J., concurred.

Rehearing denied.