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German Savings & Loan Society v. Fisher

92 Cal. 502 Court Department Two. Decision date 1891-12-29 Docket No. 14008 English

Delivered by McFarland, J.

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p. 502
[No. 14008.
Department Two.
December 29, 1891.]
THE GERMAN SAVINGS AND LOAN SOCIETY, Respondent, v. MICHEL FISHER et al., Appellants.

Headnote

Estates of Decedents—Presentation of Claims — Foreclosure of Mortgage — Waiver of Recourse.—An action may be maintained against the executors of the will of a decedent to foreclose a mortgage upon the property of the estate, where all recourse against other property is waived in the complaint, although the mortgage was not presented to the executor for allowance; and the fact that the action was not commenced until after the expiration of the time for the presentation of claims against the estate does not bar the right of action.
Appeal from a judgment of the Superior Court of Alameda County.
The facts are stated in the opinion of the court.
B. McFadden, and J. B. Richardson, for Appellants.
John R. Jarboe, and Jarboe & Harrison, for Respondent.

This is an action against the executor of a will and others to foreclose a mortgage. Judgment went for plaintiff, and defendants appeal. The mortgage was not presented to the executor for allowance; but all recourse against other property is waived in the complaint. This action, however, was not commenced until after the expiration of the time for the presentation of claims against the estate, and appellants contend that respondent’s right of action was barred after the expiration of that time. But the point was decided directly against the contention of appellants in the case of Anglo-Nevada Assur. Co. v. Nadeau’s Ex’rs, 90 Cal. 393 ; and upon the authority of that case the judgment must be affirmed.

Judgment affirmed.

De Haven, J., and Sharpstein, J., concurred.

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