Raggio v. Palmtag , 155 Cal. 797 ( 1909 )

The petition for a rehearing is denied. In response to the points therein presented we think it proper to give as an additional reason for the affirmance of the judgment, that stated in the concurring opinion of Justice Angellotti. The court below held, in effect, that the mortgage claim was duly presented for allowance against the estate of Luis Raggio, deceased. This was fully established by the findings and also by the evidence, which is not contradicted, and which is somewhat more specific than the findings. The claim was properly verified. It attempted to state the contents of the mortgage, and the statement was amply sufficient to identify it, except for the fact that the names of the mortgagor and mortgagee were not given and that one of the parcels of land mortgaged was incorrectly described, the mistake being obviously a mere clerical inaccuracy. But the claim was presented to the administrator in a sealed envelope and with it were inclosed the original note and mortgage, mentioned in the statement of the claim. The provisions of section 1497 of the Code of Civil Procedure regarding the reference to the record of the mortgage, in the statement of a claim secured thereby are enabling and not restrictive or exclusive. The purpose of the reference is to afford means whereby the administrator may ascertain the terms of the mortgage and the land it covers, and the statute allows a mere reference to the record instead of the full statement of its terms, which might otherwise be necessary. It is plain that, although any other mode of statement which fully informs the administrator of the terms of the mortgage would be sufficient, the claimant did not, in the present case, make the required reference to the book and page of the mortgage record, but instead thereof she afforded much more satisfactory means of information of its contents. She inclosed, with the claim, the original note and mortgage, all being in the same envelope and sealed. This made the note and mortgage as effectually parts of the claim as if they had been attached or fastened thereto in the ordinary manner, and it gave the administrator full knowledge of its contents. This was the object to be attained by the citation to the record. It was thus fully accomplished by more satisfactory evidence and the presentation was complete. (Estate of McDougald, 146 Cal. 193, [79 P. 878].) The description of the land as set forth in the statement of the claim, did not purport to be anything more than a copy of the description contained in the mortgage, and the clerical error therein was completely controlled and corrected by the original mortgage which accompanied it. Such an error so entirely cured would not invalidate the claim.