Pitte v. Shipley
California Supreme Court
Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco. This action was brought against the administrators cum testamento annexo and heirs of James Fuller, deceased, to foreclose a mortgage of certain real estate given to secure a promissory, note dated November 12th, 1862, payable two years after date.
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Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco. This action was brought against the administrators cum testamento annexo and heirs of James Fuller, deceased, to foreclose a mortgage of certain real estate given to secure a promissory, note dated November 12th, 1862, payable two years after date. The mortgagor died in December, 1862. The complaint alleges that the mortgagee,'within ten months next after the publication of notice to creditors, called upon the widow of the deceased, who was at the time executrix of the estate, and presented the…
1Opinion of the Court
By the Court, Niles, J:
Neither the promissory note, nor the mortgage given to secure it, was formally presented to the executrix or Probate Judge for allowance within ten months after the publication of notice to creditors. The note was made by the decedent alone, and the land mortgaged by him to secure its payment was a part of his general estate. The question is presented as to the effect of this failure to present the claim upon the rights of the plaintiff, who now seeks merely to foreclose his mortgage, but prefers no claim against the estate for any deficiency.
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2Cases cited4 opinions
- Fallon v. ButlerCalifornia Supreme Court · 1862
- Sichel v. De CarrilloCalifornia Supreme Court · 1871
- Christy v. DanaCalifornia Supreme Court · 1868
- Ellis v. PolhemusCalifornia Supreme Court · 1865
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- State ex rel. Meyer v. GreeneSupreme Court of Alabama · 1908
- Hoag v. HowardCalifornia Supreme Court · 1880
- People v. MirmiraniCalifornia Supreme Court · 1981
- Miller v. DunnCalifornia Supreme Court · 1887
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