Opinion
Department Two
Appeal from a judgment of the Superior Court of Modoc County. C. L. Claflin, Judge.
COUNSEL:
The reason of the rule requiring the presentation of liens and encumbrances upon the homestead, was to preserve the homestead, if possible. (Camp v. Grider , 62 Cal. 21; Bollinger v. Manning , 79 Cal. 11.) The reason of the rule is the same as to probate homesteads, and the rule should be the same. (Civ. Code, sec. 3511.) Homestead statutes, being remedial in their nature, are to be construed liberally, to carry out the manifest purpose of the legislature. (Keyes v. Cyrus , 100 Cal. 322; 38 Am. St. Rep. 296; Schuyler v. Broughton , 76 Cal. 524; Southwick v. Davis , 78 Cal. 504; Quackenbush v. Reed , 102 Cal. 493.) The provisions of section 1475 have been held applicable to homesteads set apart by the court. (Lord v. Lord , 65 Cal. 86.)
Goodwin & Stewart, and D. W. Jenks, for Appellants.
G. F. Harris, for Respondent.
The premises in controversy being a probate homestead, it is not necessary to present the mortgage as a claim against the estate. (Code Civ. Proc., secs. 1475, 1500; Estate of Moore , 57 Cal. 437; Bollinger v. Manning , 79 Cal. 12.) Probate homesteads vest no estate either in law or in equity. (Code Civ. Proc., sec. 1468; Estate of Moore , 57 Cal. 437; Estate of Burton , 63 Cal. 36; Estate of Gilmore , 81 Cal. 243; Estate of Schmidt , 94 Cal. 335.)
JUDGES: Searls, C. Belcher, C., and Vanclief, C., concurred. McFarland, J., Temple, J., Henshaw, J.
OPINION
SEARLS, Judge
This is an appeal by the defendants, Nellie Forrest, administratrix of the estate of John M. Forrest, deceased, Nellie Forrest, Sr., widow, and Mary Forrest and John Shannahan Forrest, infant children of said deceased and of said Nellie Forrest, Sr., from a judgment in favor of plaintiff foreclosing a certain mortgage executed by John M. Forrest, deceased, during his lifetime, upon two certain parcels of land situate at Alturas, county of Modoc, to secure the payment of a promissory note dated September 14, 1891, made by said Forrest, deceased, for two thousand four hundred dollars, and interest at one per cent per month, payable one year after date.
The mortgage was duly recorded. After the death of John M. Forrest and the appointment [41 P. 818] of his administratrix one of the parcels of land covered by the mortgage, which was of the community property of deceased and his wife, Nellie Forrest, Sr., was set apart by the court as a homestead for the family of deceased. Subsequently the plaintiff presented the following creditor's claim to the administratrix:
" The undersigned creditor of John M. Forrest, deceased, presents his claim against the estate of said deceased, with the necessary vouchers for approval as follows:
| " Estate of John M. Forrest, Deceased, | ||
| " 1893. | To John McGahey, | Dr. |
| " June 13th, to amount of promissory note executed | ||
| by John M. Forrest for the sum of $ 2,400 | ||
| on the 14th day of September, 1891, with interest | ||
| at 1 per cent per month, payable annually, | ||
| secured by mortgage of even date as of | ||
| record upon the record book of mortgages | ||
| No. 6, pages 463-4-5, Modoc county records -- copy | ||
| of said note herewith attached.. .. . . | $ 2,400 | |
| " Interest for one year to September 14th, 1892, | ||
| (indorsed) | 288 | |
| " Interest for one year to date, June 14th, 1893.. | 216 | |
| " Total | $ 2,904 | |
| " 1892. | ) Cr. | |
| " September 14th, by amount paid as interest due | 288 | |
| $ 2,616" |
The complaint in foreclosure waives all recourse against other property of the estate than the mortgaged premises, waives counsel fees, etc.
Copies of the mortgage and of the claim as presented to the administratrix were attached to the complaint and made a part thereof.
A demurrer was interposed by defendants to the complaint upon the grounds: 1. That it does not state facts sufficient to constitute a cause of action; 2. That it is ambiguous in this: It cannot be determined therefrom whether the mortgage described in the complaint was ever presented to the administratrix of the estate of John M. Forrest, deceased, as a claim against said estate; 3. That it is uncertain, and specifying the same reason as that given for its ambiguity.
The demurrer was overruled, an answer filed, and the facts agreed to by the parties as above stated.
The question presented here involves two propositions, viz:
1. Was any presentation of the claim of the plaintiff necessary? 2. If so, was the description of the mortgage in the claim as presented to the administratrix sufficient?
The argument of appellant is, that as to so much of the mortgaged property as is covered by the homestead, the mortgage, as such, should have been presented to the administratrix, and the claim secured thereby allowed as other claims, and that this was not done for the reason that the claim as presented and allowed contained no sufficient description.
Section 1493 of the Code of Civil Procedure requires: "All claims arising upon contracts, whether the same be due or not due or contingent," to be presented to the executor or administrator for allowance, and, if not presented within the time limited, they are barred forever, etc.
There is an exception to the general rule in the case of mortgages, which, under section 1500 of the Code of Civil Procedure, may be foreclosed upon the property of the decedent without a previous presentation, where all recourse against any other property of the estate is expressly waived in the complaint, but in such cases no counsel fee shall be recovered.
This right to maintain an action upon a claim secured by a mortgage upon the property of the decedent is in turn limited by section 1475 of the same code, as amended in 1880, which section provides, in substance, that where a homestead has been selected and recorded, prior to the death of the decedent, and is returned in the inventory appraised at not exceeding five thousand dollars, etc., the superior court must set it off to the persons in whom the title is vested by the preceding section; that is to say, in cases where it was selected from the community property, to the survivor.
In such cases if there be subsisting liens or encumbrances upon the homestead, the claims secured thereby must be presented and allowed as other claims against the estate, and are to be paid out of the funds of the estate, if sufficient, and can only be enforced against the homestead for the deficiency after exhausting the other funds of the estate.
The necessity of presenting a claim secured by mortgage upon a homestead to the administrator was upheld in Bollinger v. Manning , 79 Cal. 7, and in Camp v. Grider , 62 Cal. 20.
In the case last cited it was said that section 1475 creates an exception, in case of homesteads declared in the lifetime of the decedent, to the general rule in cases of mortgages and other liens provided for in section 1500, and that the reason of the rule is to preserve the homestead if possible.
In Perkins v. Onyett , 86 Cal. 348, the necessity of presenting a claim to the administrator, where secured by a mortgage upon the homestead, was again upheld.
There can be no question of the necessity of presenting for allowance a claim secured by mortgage upon a homestead within the cases provided for in section 1475.
But that section in express terms only applies to "the homestead selected and recorded prior to the death of the decedent."
The homestead in this case did not exist at the time of the death of the deceased, but was set apart subsequently by the superior court in probate, and is what is known as a probate homestead.
Here, then, we have a general rule, provided by section 1500, that the [41 P. 819] holder of a mortgage or lien upon real property of a decedent may enforce such mortgage or lien without presentation, provided he is willing to waive any claim against decedent's estate over and beyond that upon the property to which the lien attaches.
This rule, under section 1475, does not apply to cases in which such mortgage or other lien exists upon a "homestead selected and recorded prior to the death of the decedent," but in such cases the claim must be presented to the administrator. To hold that the exception extends to probate homesteads is to enlarge its scope and apply it to a class of cases not included by the language of the statute within its provisions, and to enlarge the exception beyond the expressed intention of the lawmakers.
There appear some reasons for not so enlarging the statute, founded upon the fact that so to do would in many cases result in shrouding the rights of lienholders in uncertainty. A holds a mortgage upon the property of a decedent. He is not required to present it to the administrator for allowance, as a predicate to his right to enforce his lien as against the specific property. If, when the time to present claims has run in part, a probate homestead is declared and set apart he must present his claim, he will be deprived pro tanto of the time for presentation allowed to other creditors, and if the time for presentation of claims has expired, as it may well do, and a homestead is then set apart by the court, including the mortgaged property, one of two things must follow, either his lien is cut off entirely, and his right to foreclose without presentation of his claim for allowance is extinguished, or it must be held that in such a case the exception mentioned in section 1475 has no application.
" Where a statute enumerates the persons or things to be affected by its provisions, there is an implied exclusion of others; there is then a natural inference that its application is not intended to be general." (Sutherland on Statutory Construction, sec. 327.)
Section 1475 enumerates the things to be affected by its provisions, viz: homesteads "selected and recorded prior to the death of the decedent" and by implication excludes all others. It follows that homesteads set apart by the order of the superior court during the pendency of probate proceedings, and which had no existence prior to the death of the decedent, are not included in section 1475, but are left to the control of section 1500 of the same code, and that a prior lien thereon may be enforced without the necessity of presenting the claim secured thereby to the executor or administrator, provided the holder is willing to expressly waive in his complaint, and does waive, all recourse against any other property of the estate.
This conclusion renders it unnecessary to discuss the sufficiency of the description of the plaintiff's mortgage in his claim as presented to and allowed by the administratrix.
The judgment appealed from should be affirmed.
For the reasons given in the foregoing opinion the judgment appealed from is affirmed.