Parry v. Kelley
California Supreme Court
Appeal from, the District Court, Third Judicial District, County of Alameda. In 1872, Cephas Kelley and Seraph A., one of the defendants, were husband and wife, and purchased a lot in Oakland in the name of the wife, but paid for it with community funds. In 1873, the plaintiff loaned the husband money, and to secure the same the wife gave him a mortgage on the lot.
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Appeal from, the District Court, Third Judicial District, County of Alameda. In 1872, Cephas Kelley and Seraph A., one of the defendants, were husband and wife, and purchased a lot in Oakland in the name of the wife, but paid for it with community funds. In 1873, the plaintiff loaned the husband money, and to secure the same the wife gave him a mortgage on the lot. When the wife gave the mortgage, she told the plaintiff that the lot was “ her property, bought with money she had earned in the practice of medicine.” On the 30th of April, 1875, the husband died intestate, leaving surviving him…
1Opinion of the Court
It does not appear that there is an administration on the estate, or that there ever will be, or that there are any debts. The Court was not called on to decide whether it would enforce the mortgage against an administrator. A decree for plaintiff would not bind an administrator if one should hereafter seek to sell the property for debts. As the matter appears of record, the plaintiff can defeat the mortgage, and rest on her title as an heir, and never administer. Judgments rendered against a person in one capacity will not estop him when he sues in another *335capacity. QJRobinsonis Case, 5 Esp.…
2Cases cited1 opinion
- Clark v. BakerCalifornia Supreme Court · 1860
3Cited by5 opinions
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