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Hibernia Sav. & Loan Soc'y v. Herbert

THE HIBERNIA SAVINGS AND LOAN SOCIETY v. JOSEPH W. HERBERT, MARY BURKE, FRANCIS WALTER BURKE, ISABELLA BURKE, AGNES BURKE, and JOHN EGAN, Administrator, with the Will annexed, of the Estate of ANASTACIA G. HERBERT

Hibernia Sav. & Loan Soc'y v. Herbert, 53 Cal. 375 (1879)
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Court
California Supreme Court · State Highest Courts
Decided
July 1, 1879
Docket
No. 5681
Judges
Crockett
Citations
53 Cal. 375
Cited by 7
Syllabus
Necessary Parties to Foreclosure.—If a mortgagor convey all his interest in the mortgaged premises to a third person, and afterwards die before the commencement of the foreclosure suit, his personal representative is not a necessary party to the action, if no judgment for the deficiency be demanded. Statute or Limitations— Saving Clause.—In such a case, if the'mortgage be made to secure the payment of several promissory notes of the mortgagor, some of which matured more than four years before the death of the grantee of the mortgagor, and before the commencement of the action, such notes are not within the saving clause of sec. 353 of the Code of Civil Procedure, and are barred by the Statute of Limitations; but as to such of the notes as matured less than four years before the death of the grantee, the action will be in time if commenced within one year after the issuance of letters oi ■ administration on the estate of the grantee.
Summary
Appeal from the District Court of the Fourth Judicial District, City and County of San Francisco. December 17th, 1868, Walter Burke executed a mortgage on real estate, to secure the payment to plaintiff of thirty:six installment notes, each of which, in consecutive numerical order, was payable on the 17th of each succeeding month, from and including the 17th of January, 1869, unless default was made in any one payment, when all of them thereby became due and payable at plaintiff’s option. Interest, counsel fees, and other incidentals, were also provided for. On May 27th, 1870, Burke conveyed the mortgaged property to his wife, Anne Burke, which conveyance was duly acknowledged and recorded on the same day. Walter Burke, the mortgagor, died in 1870, and left no estate. The widow married Jos. W. Herbert in 1874, and died on October 23rd, 1875. December 27th, 1875, letters of administration were issued out of the Probate Court of Alameda County, (she being a resident of that County at the time of her death) to the defendant John Egan on her estate, which consisted solely of the lot of land described in the complaint. The defendant J os. W. Herbert is the surviving husband, and the defendants Mary Burke, Francis W. Burke, Isabella Burke, and Agnes Burke are the infant children of Anastacia Gr. Herbert, deceased. This action was commenced on February 8th, 1876^ for foreclosure of the mortgage and sale of the mortgaged premises, and to have the proceeds applied to the payment of the last seven of the installment notes, viz., 30th to 36th, inclusive, which were alleged to be unpaid, and to the payment of counsel fees, etc. No personal judgment is asked. Judgment was rendered for plaintiff, and defendants appealed.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Crockett

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By the Court, Crockett, J.:

The mortgagor Burke having conveyed the mortgaged premises by deed of gift to his wife, and having thenceforth no interest in the property, his personal representative was not a necessary party to the foreclosure suit. (Story’s Eq. PL, sec. 197, and authorities there cited.)

The first of the promissory notes, for the satisfaction of which a foreclosure of the mortgage is sought, became due on the 17th of June, 1871, and the last of them on the 17th of December, 1871. The wife, to whom the property was conveyed, died October 23rd, 1875, and administration on her estate was granted December 27th, 1875. The action was commenced February 8th, 1876, and the administrator and children of the deceased wife were made parties defendant. The defense relied upon is the Statute of Limitations.

But sec. 353 of the Code of Civil Procedure provides that if a person against whom an action may be brought die before the expiration of the time limited for the commencement of the action, and the cause of action survive, the action may be commenced against his representatives .after the expiration of that time, and within one year after the issuing of letters testamentary or of administration.

The notes which became due on the 17th of June, the 17th-of July, the 17th of August, the 17th of September, and the 17th of October, 1871, had all been due more than four years *379 before the wife died; but those which became due respectively on the 17th of November and December, 1871, had not been due four years at the time of her death. The first five notes were therefore barred by the statute at the time of her death, and do not come within the saving clause of sec. 353, while the last two notes, which became due after her death, are within the very terms of that section, and as to them the action was commenced in time.

Judgment and order reversed and cause remanded, with an order to the Court below to modify its judgment in accordance with this opinion.

Mr. Justice Rhodes did not express any opinion.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 7 cases

View all citing references →
1897: 11902: 11905: 11906: 11948: 21957: 118972026peak 1948 · 2

Relies on it most ⓘ

  1. California Title Insurance & Trust Co. v. Miller84 P. 453 (Cal. Ct. App. 1906)
  2. Casey v. Gibbons68 P. 1032 (Cal. 1902)
  3. Estate of Bullard48 P. 219 (Cal. 1897) · Concurrence
  4. Silva v. Superior Court189 P.2d 314 (Cal. Ct. App. 1948)
  5. Vonchina v. Estate of Turner315 P.2d 723 (Cal. Ct. App. 1957)
  6. Colonial & United States Mortgage Co. v. Flemington103 N.W. 929 (N.D. 1905) · Dissent

Most recent

  1. Vonchina v. Estate of Turner315 P.2d 723 (Cal. Ct. App. 1957)
  2. Prytz v. Associated Farms, Inc.198 P.2d 110 (Cal. Ct. App. 1948)
  3. Silva v. Superior Court189 P.2d 314 (Cal. Ct. App. 1948)
  4. California Title Insurance & Trust Co. v. Miller84 P. 453 (Cal. Ct. App. 1906)
  5. Colonial & United States Mortgage Co. v. Flemington103 N.W. 929 (N.D. 1905) · Dissent
  6. Casey v. Gibbons68 P. 1032 (Cal. 1902)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

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