lutely, and for me to cancel the mortgage, 'and then I will give you an option to buy it back again within any time you want.' He replied that he could not do anything else." Thereupon defendants made the deed to plaintiff, and received a "written option," as it is called, to purchase at any time within seven months for $4,853, which sum includes the principal sum due, with interest computed for the seven months during which the option was to extend. The plaintiff further testified: "The consideration for the deed and collateral agreement was the cancellation of the mortgage, and the debt thereby secured, and that agreement affording them an opportunity of purchasing the property within seven months. All I wanted back at the time was the money that was due me. I was not willing that the matter should remain as it was any longer. He said, if I would give him the privilege of buying the land, or would agree to sell it to him within a certain time, he would pay the debt by giving me a deed. It was his own proposition. The price of the land was the amount of the debt." The defendants testified very positively, in effect, that the deed was given in consideration of further time in which to pay the debt. Garwood was willing, according to their evidence, to give further time, if he could be saved the necessity of foreclosing a mortgage. That all the parties then understood that there would be no necessity of foreclosing, and that Garwood's title would become absolute at the end of the seven months, I concede. Mr. Wheaton testified: "The deed was given on the consideration that Mr. Garwood would give me further time. The deed was given to satisfy Garwood, to avoid foreclosure proceedings. had no other alternative. I had either to assign this property to him, or let him begin foreclosure proceedings. He said, 'I shall begin foreclosure proceedings, but I will give you an agreement for further time of seven months to redeem in, at the same rate of interest as before." " He had conveyed the land to his daughter, and testified that after the deed was made he always considered that his daughter owned the land. They continued to collect the rents and to occupy the house as before. The testimony of the daughter is, in effect, the same. I think, upon the crucial point, whether the deed was given to secure further time within which defendants could pay their debt, there is no substantial variance between the testimony of plaintiff and defendants. They agree that such was the purpose. Such being the case, it is immaterial that both thought that the title passed by the deed and was absolute on the expiration of the seven months without foreclosure. The statement made by Garwood that the conveyance paid the debt is but a legal conclusion. Even had both parties used that expression, it would mean but little, in view of the fact that, as part of the consideration for the deed, the option to I repurchase for the precise amount of the debt was given. Personal liability is not essential to a mortgage, and the well-established rule is that every contract which can well be construed to be a mortgage, rather than an absolute conveyance of title, is a mortgage. This policy is clearly recognized in sections 2888 and 2889 of the Civil Code. A conveyance of the fee by a mortgagor to the mortgagee is always regarded with extreme jealousy, and will be deemed merely as a renewal of the mortgage, if possible. Bradbury v. Davenport, 114 Cal. 593, 46 Pac. 1062; Hickok v. Lowe, 10 Cal. 197. In the last case Judge Field quotes with approbation the following from Kerr v. Gilmore, 6 Watts, 405: "The cases, however, seem to admit the possibility of a deed absolute on its face and a defeasance agreeing to reconvey, if the money be paid on a certain time, and the latter may be unavailing unless the money be paid at the time specified. This can, I apprehend, only occur where the contract and conveyance were clearly for an absolute sale, and the agreement to reconvey a subsequent and distinct matter, not in contemplation of the parties when the sale was made and the deed delivered. * * When they are of the same date, and executed at the same meeting of the parties, before the same witnesses, they must be a mortgage, and only a mortgage, or there will be no more mortgages." A great many cases are cited, and the learned justice concludes that "slight circumstances will determine the transaction to be one of mortgage, when that can be done without violence to the understanding of the parties." The transaction is in the precise form of a mortgage at common law, and, under the holding here, it has all the consequences which attached to such a mortgage at law. Courts of equity allowed the mortgagor to redeem, but the effect of this decision is that nonpayment works a forfeiture and allows no redemption. It is a curious result, if, notwithstanding the numerous provisions of our Code prohibiting such mortgages, and providing that no such result shall follow, whatever the parties intend and agree to, the common-law mortgage can now be used, and the property subject to the lien forfeited, without the right to redeem. The decision conflicts with sections 2888 and 2889 of the Civil Code. That the parties did not agree or understand that the transaction was a mortgage is not to the point. They did understand that plaintiff was willing to give further time if he could avoid the expense and delay of a foreclosure. And he did give them further time upon their executing a deed which he thought would become absolute if not redeemed by paying the principal and interest of the debt within seven months. This, by all the decisions, was a mortgage, and, as I have said, was exactly and in all respects itself a common-law mortgage. It contracted for a forfeiture, and denied the right of redemption. 128 Cal. 197 GOAD V. HART. (S. F. 1,390.) (Supreme Court of California. April 25, 1900.) Dissenting opinion. For majority opinion, see 60 Pac. 761. BEATTY, C. J. I dissent from the order denying a rehearing of this cause and from the judgment of the department upon the ground that the suit was premature. There was not, in my opinion, anything due upon defendant's contract when the action was commenced. 6 Cal. Unrep. 427 REAVIS v. GARDNER et ux. (S. F. 1,246.) (Supreme Court of California. April 13, 1900.) APPEAL AND ERROR-REVIEW-FINDINGS OF FACT-EVIDENCE-PRESUMPTIONS. 1. Findings that the original owner of land conveyed the same to her daughter, reserving in such conveyance an estate for life, and that later the same grantor conveyed the same premises by deed of gift to another daughter, are not conflicting, since the latter conveyance should be understood to mean a conveyance of the life estate, only, then remaining in possession of the grantor. 2. That findings of fact do not determine the ultimate fact of ownership of property in controversy is not material, where successive conveyances from the source of title to the plaintiff are found. 3. It cannot be conclusively presumed that a woman was married in 1889, at the time of receiving a grant of land, from proof of coverture in 1891, 1893, and 1897, and that in 1897 a son of the same name as her supposed husband commenced a suit, and was presumably of full age. vis is also the daughter of Nancy J. Hill. (3) That Nancy J. Hill died June 2, 1892. That on December 27, 1892, Ann E. Reavis made a deed of the premises to one Nellie Holt, and on November 10, 1894, said Nellie Holt executed a deed of the same to plaintiff. Upon these and some other findings, not necessary to be stated, judgment was rendered for the plaintiff. On appeal the defendants argue that findings 1 and 2 are in conflict; that they represent the grantor as conveying the land twice, -first to Ann E. Reavis, and afterwards to the defendant Dora. But understanding the findings, as we must, in their relations among themselves as a connected whole, and in the sense which will sustain rather than defeat the judgment (for that is the sense in which the court below doubtless meant them), there is no necessary conflict. The finding of a conveyance of the premises by Nancy J. Hill to Ann E. Reavis shows that a life estate was reserved to the grantor. The further finding of a conveyance by deed of gift to Mrs. Gardner should be understood to refer to the conveyance of the life estate the grantor had then remaining in the premises,-a title which was determined by her death, on June 2, 1892. In this view, the finding of the death of Nancy J. Hill serves a purpose, and is material; for it shows that the interest reserved to her in the deed of January, 1889, and which passed to Mrs. Gardner by the deed of April, 1891, has ceased. But the circumstance of her death was wholly immaterial, if the court had meant to decide as a fact what the words in said finding 2, standing alone, import, viz. that on April 21, 1891, the premises were conveyed absolutely to Mrs. Gardner. We ought not to assume that the court has made any superfluous finding. A further point made in this connection is that the findings do not respond to the issue of ownership raised by the pleadings. It is true, the ultimate fact of ownership is not found, but successive conveyances from the source of title to the plaintiff are found, and this is sufficient in such cases as the present. Kidder v. Stevens, 60 Cal. 414; McCarthy v. Brown, 113 Cal. 15, 45 Pac. 14. BRITT, C. The action is ejectment for a lot of land in Napa City. It is alleged in the complaint, in the usual manner, that plaintiff is owner of the land, and the allegation is denied by the answer. Both plaintiff and the defendant Dora L. Gardner claim to deraign title from one Nancy J. Hill. The trial was by the court without a jury, and among the findings of fact are the following: (1) That on January 28, 1889, said Nancy J. Hill was the owner in fee of said land, and on that day "conveyed the same, by a deed of grant, bargain, and sale, to Ann E. Reavis; reserving in such conveyance an estate for her life 'n the premises." (2) That on April 21, 1891, said Nancy J. Hill "conveyed the demanded premises, by a deed of gift, to the defendant Dora L. Gardner," for the consideration of love and affection; said Dora being a daughter of said Nancy J. Hill. Said Ann E. Rea- | citing Jordan v. Fay, 98 Cal. 264, 33 Pac. The plaintiff, whom we may suppose to be a person of full age, is the son of said Ann E. Reavis. It appeared in evidence at the trial, though in an incidental way, that in the years 1891 and 1893, and also at the time of the trial, in 1897, said Ann was the wife of a man of the name of Reavis. From these facts defendants contend that it is to be presumed that she was a married woman on January 28, 1889, the time she received the deed from Nancy J. Hill. Hence defendants say, under section 164, Civ. Code, as it stood at that time, the land became community property of said Ann and her presumptive husband; that she was incompetent to convey it, and her deed thereof to Nellie Holt, the immediate grantor of plaintiff, was void,— 95. This question was not raised at the trial. If it had been, perhaps the evidence would have been more definite. To sustain defendants' contention now, on the evidence in the record, would be to hold that the presumption of continuing coverture operates retrospectively from the time the fact of coverture is shown to exist, which is not the law. See various illustrations in Lawson's work on Presumptive Evidence (page 238, 2d Ed.). The circumstance that Mrs. Reavis has a son named Reavis, the plaintiff, who must have been born long prior to January 28, 1889, does not conclude the matter. She may have been a widow at the date last mentioned, and have subsequently married a man of the same name as herself. The judgment and order denying a new trial should be affirmed. We concur: COOPER, C.; CHIPMAN, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order denying a new trial are affirmed. 128 Cal. 380 ADAMS v. BANK OF WOODLAND. (Supreme Court of California. April 13, 1900.) HOMESTEAD-INSOLVENT ESTATE-JUDICIAL DISCRETION-ABUSE-CONDI- Where it appears that an estate is insolvent, and that lands belonging to it were so situated that they could be otherwise divided, it is an abuse of discretion to set aside to a widow and minor children lands valued at over $11,000 as a homestead, as against creditors, on the ground that such allowance is necessary for the "support" of the widow and children; since Code Civ. Proc. § 1465, provides only that such homestead be set aside for the "use" of the family, and section 1466 limits any additional allowance for maintenance to one year in the case of an insolvent estate, an exempt homestead claimable in the lifetime of a debtor being limited to $5,000 in value. McFarland, J., dissenting. In bank. Appeal from superior court, Yolo county. Petition by Elizabeth Adams to set apart to her a homestead out of the estate of D. Q. Adams, deceased, to which the Bank of Woodland, a creditor of the estate, filed objections. From an order granting the petition, the bank appeals. Reversed. N. A. Hawkins and Craig & Hawkins, for appellant. R. L. Simpson and R. E. Hopkins, for respondent. HARRISON, J. This appeal is from an order of the superior court, made in the aboveentitled estate, setting apart a homestead to the respondent, who is the widow of the deceased. Her original petition for the homestead was filed September 13, 1895, and an amended petition upon which the hearing was had was filed January 17, 1896. The appellant is a creditor of the estate, and filed objections to the granting of the widow's petition, and upon the issues thereby presented the court filed its findings of fact and made the order appealed from. The court finds that the decedent died January 20, 1890, leaving a widow-the respondent herein-and four children, who are still minors, and under the care and maintenance of their mother; that nohomestead was selected by him in his lifetime or by the petitioner; that he left a last will and testament, in which the respondent was named as one of his executors, and that the same was admitted to probate and letters testamentary thereon issued March 17, 1890; that the whole of the real property belonging to the estate was the separate property of the deceased; that the property prayed for as a homestead was the family residence of the deceased and his family; that said tract will not more than support and maintain the petitioner and her children, and is more suitable for a homestead than any other property of the estate. An inventory of the estate of the deceased was filed April 15, 1890, and the same was then appraised at the sum of $232,732. The record does not show the amount of the indebtedness at that time, but it appears that a portion of the estate was mortgaged to the appellant, and that under a foreclosure of this mortgage about 2,000 acres of the land was sold, leaving a deficiency judgment of nearly $27,000, which has not been paid. The court finds that the estate is still indebted to the appellant in the sum of about $80,000, for which the appellant holds no security, and is indebted to another creditor in the sum of $8,000. The court does not find the value of the estate still remaining in the hands of the executrix, or whether there are any other outstanding claims against the estate, but it does find that the property of the estate, "if sold at public auction under order of this court, would not pay in full the outstanding indebtedness of said estate and the charges and expenses of administration already accrued and to accrue in the final settlement of said estate"; and at the hearing upon the petition one of the witnesses testified: "The whole estate is not worth seventy thousand dollars. If this property is set apart as a homestead to Mrs. Adams, the creditors will lose at least fifty per cent. of their debts." The property set apart as a homestead consists of 215 acres of cultivated land and about 85 acres of land not cultivated in the creek bottom, and the court finds that at the time the order was made setting it apart it was of the value of $11,139.70. It was held in Re Walkerly, 81 Cal. 579, 22 Pac. 888, that the provisions of the Code for setting apart a homestead for the family of the deceased, when none had been selected before his death, do not contain any limitation to the value of such homestead; that the value of the homestead thus to be set apart is within the discretion of the court, and that in the exercise of this discretion it is to take into consideration the amount and condition of the estate; and that its action will not be interfered with by this court unless it appears that such discretion was abused. The rule thus declared was repeated in Re Smith's Estate, 99 Cal. 449, 34 Pac. 77. The question presented upon the present appeal has not, however, been heretofore considered by the court. In the Walkerly Case the value of the estate above its indebtedness exceeded $500,000, and in Re Smith's Estate was of the value of $75,000 above all debts and expenses of administration, and in each of those cases the property set apart as a homestead was an entirety, and incapable of division; whereas in the present case the estate is insolvent, and It does not appear that the property of the estate was so situated that it could not have been otherwise divided. In each of the above cases it was declared that the discretion of the court was to be exercised upon a consideration of the amount and condition of the estate. In the exercise of its discretion, as controlled by these considerations, the court must also take into account the rights of creditors, and, although their rights are subordinate to the right of the family to a home, they are not to be entirely disregarded. For the purpose of adjusting these conflicting rights, the provision which the law has made to afford a home for the family, and the object underlying all of the legislative provisions for a homestead, are also subjects proper to be considered by the court. The main object of the law in directing that a homestead be set apart for the surviving family out of the estate of a decedent is the same as in the provision for the selection of a homestead in his lifetime, viz. to provide it with a home in which it may have shelter from want, and protection against the greed of creditors or its own improvidence. In re Schmidt's Estate, 94 Cal. 337, 29 Pac. 714; Keyes v. Cyrus, 100 Cal. 322, 34 Pac. 722. While the home thus given to the family may be available as a source of support, the Code does not direct, nor is it within the purpose of the legislation thereon, that the homestead to be set apart shall be sufficient for the permanent support of the family in case the estate is insolvent. The authority to set apart a homestead is found in section 1465, Code Civ. Proc., and under that section it is to be set apart for the "use" of the family; and the provision in section 1466, limiting any additional allowance for the maintenance of the family to one year in the case of an insolvent estate implies that, aside from the place of residence for a home which may have been set apart, the family is not entitled to "support" from an insolvent estate for more than one year from the granting of letters of administration. The family will be entitled to whatever support it may get from the homestead which the court is authorized to set apart, but the capacity of the homestead to support the family is not the measure of the court's authority to set it apart, or a test for the proper exercise of its discretion. The legislature has fixed the sum of $5,000 as the limit in value which the debtor may claim for his homestead against the demands of his creditors, and, while it has not fixed this limitation upon the value of a probate homestead to be set apart by the court where none was selected in the lifetime of the decedent, a wise exercise of judicial discretion would limit the homestead to be so set apart to this amount in value in the case of an insolvent estate, where a homestead of this value can be divided from the remainder of the estate, or where the property sought to be set apart is capable of such admeasurement. As it clearly appears from the record herein that the estate was insolvent, and that the property is so situated that a portion thereof, not exceeding $5,000 in value, could be selected, and set apart as a homestead, it must be held that the court abused its discretion in making the order appealed from. The correctness of the order is to be determined upon a consideration of the character of the estate at the time of making the application or of the hearing thereon. While the present order might have been upheld if it had been made at the outset of the administration, and it had then appeared that the estate was solvent, the reason therefor fails when the settlement of the estate and the payment of the claims against it has been delayed until the property has so far depreciated in value that it is insufficient to meet these claims. Neither is any benefit that the estate may have derived from the care and provision of the executrix, or any extravagance in the management of the estate, or the amount previously allowed for the support of the family, an element to be considered in determining the right to have a homestead set apart. No exception seems to have been made to the granting of the order for family allowance, and whether the estate has been properly managed or not is a matter to be considered by the court in passing upon the annual accounts of the executrix. The order is reversed. We concur: BEATTY, C. J.; TEMPLE, J.; VAN DYKE, J.; HENSHAW, J.; GAROUTTE, J. MCFARLAND, J. I dissent. My views of this case are somewhat fully expressed in my opinion delivered in department. 57 Pac. 569. I desire to say, in addition, that it is only through the power of the court to set aside a homestead and certain personal property for the use of the widow that wifehood gives a woman any interest whatever in the property of her husband. At common law, and in the American states where dower exists, the moment the marriage ceremony is performed the wife is vested with an estate in all the lands of her husband, which he cannot take away from her by will or otherwise. But in this state marriage gives the wife no estate whatever in the property of her husband. He may dispose of the whole of it by will, and leave her without a dollar. Of course, this rule does not apply to community property which is supposed to have been acquired by the joint efforts of both spouses, but with respect to the separate property of the husband our law is most illiberal to the wife. I think, therefore, that the power given the probate court to set aside to her a homestead should be liberally exercised, and I can see no just reason for holding that in the case at bar the court abused its discretion. 128 Cal. 388 In re TURNER'S ESTATE. (Sac. 665.) Appeal of REGENTS OF UNIVERSITY OF CALIFORNIA. (Supreme Court of California. April 14, 1900.) EXECUTORS-CLAIMS-MORTGAGES-ALLOW ANCE WAIVER-AMENDMENT-APPEAL. 1. Code Civ. Proc. § 1569, requires an executor who has sold his decedent's land subject to a mortgage which has been presented and allowed as a claim against the estate to first apply the proceeds of the sale to the payment of the mortgage, after payment of expenses. Section 1570 authorizes a mortgagee to become a purchaser at any sale of the mortgaged lands under an order of the court, and provides that "his receipt for the amount due him from the proceeds of the sale, is a payment pro tanto." Section 1497 enables a mortgagee of lands belonging to a decedent to present his claim, by describing the mortgage, and referring to the date, volume, and page of its record. Section 1493 declares that all claims against a decedent's estate arising on contract will be barred if not presented within the time limited in the notice. Held, that a mortgagee of a decedent's land, by procuring an allowance of the amount of the note secured by the mortgage under a presentation which made no reference to the mortgage, other than a recital in the note stating that it was secured by a mortgage bearing the same date as the note, waived his right to have the mortgage considered as a lien on the mortgaged land, so that, after purchasing the land at the executor's sale under an order of court, he was not entitled to have the price applied in satisfaction of the mortgage. 2. A refusal to permit a claimant against a decedent's estate to amend his claim after its allowance by adding that it was secured by a mortgage, on the ground that such fact had been inadvertently omitted, is not appealable. 3. A claimant against a decedent's estate will not be allowed to amend his claim by adding that it was secured by a mortgage, after the expiration of the time for the presentation of claims. Department 1. Appeal from superior court, Merced county. Application by the regents of the University of California for an order requiring the administrator of the estate of William C. Turner, deceased, to execute a conveyance to plaintiffs of certain real estate sold by such administrator under order of court. From an order denying plaintiffs' motion to amend their claim, filed and allowed as a claim against the estate, and from an order denying their application to compel the administrator to execute the conveyance, plaintiffs appeal. Former appeal dismissed. Latter order affirmed. John B. Mhoon and J. C. Law, for appellants. Jas. F. Peck, for administrator. J. F. McSwain, for certain creditors. HARRISON, J. The above-named dececedent borrowed from the regents of the University of California, February 28, 1889, $47,000, and executed to that body his promissory note therefor, and a mortgage upon certain real property to secure its payment. After his death a claim was presented to the administrator of his estate, on behalf of the regents, setting out the promissory note and the amount due thereon; and this claim was allowed by the administrator September 13, 1894, for the sum of $51,789.78, and on September 23, 1895, this allowance was approved by the judge, and the claim so allowed and approved was filed with the clerk. The mortgage which had been given to secure the note was recorded in the office of the county recorder for Merced county March 2, 1889, in Liber P of Mortgages, at page 228; but no claim upon this mortgage was presented to the administrator, and in the claim that was presented for allowance no reference was made to the date, volume, or page of record of the mortgage, nor did the claim describe the mortgage, or in any way state that it was secured by a mortgage upon real property. The claim, as presented, merely set forth a copy of the promissory note, with the amount due thereon, and the only reference to a mortgage was the following recital in the promissory note: "This note is secured by a mortgage bearing even date herewith." Other claims against the estate amounting to about $30,000 were presented and allowed; and December 18, 1897, the administrator obtained an order of the court for the sale of the property belonging to the decedent's estate for the purpose of paying the allowed claims against the estate, aggregating the sum of $88,769, and the expenses and charges thereafter to accrue, estimated at $8,470. Under a sale made by virtue of this order the regents purchased certain parcels of real estate, which were included in the aforesaid mortgage, for the aggregate sum of $54,499; and on April 27, 1898, upon the return of sales made by the administrator, the court made an order confirming the aforesaid sales to the regents, and directing the administrator to make and execute proper deeds of conveyance therefor upon payment to him of the purchase price for the same. Upon his offer to execute conveyances for the lands so purchased by them, the regents stated to him that they would not pay any sum of money whatever for said lands, but would pay for said lands by the tender and delivery of a receipt for the amount of the purchase price to be paid for said lands, and would credit the said sum so paid upon their claim that had been presented and allowed, and would pay for said lands in no other way. The administrator declined to accept such receipt in payment, |