Hibernia Sav. & Loan Soc'y v. Herbert , 53 Cal. 375 ( 1879 )

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 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.