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expressly waived in the complaint; but no counsel fees shall be recovered in such action unless such claim be so presented."

...Judgment Lien not Extinguished by Death.-"Other sections of the code [of Civil Procedure besides 671, quoted under section 623, note 2, below, of this book] confirm rather than negative the continuance of the hen after the death of the debtor. Section 669 of . the Code of Civil Procedure, in making provision for the entry of a judgment, says: 'If a party die after a verdict or decision upon an issue of fact, and before judgment, the court may, nevertheless render Judgment thereon. Such judgment is not a lien upon the real property of the deceased party, but is payable in the course of administration on his estate.' And in the title devoted to the estates of deceased persons the same provision is re-enacted: Code Civ. Proc., sec. 1506. It is impossible to resist the effect of this express provision as implying that the judgment in other cases is a lien. If every judg ment ceased to be a lien upon the death of a debtor, why make special provision that this judgment, rendered before the death, should not be a lien?

"There is also an apparent recognition of the continuing lien of judgments in section 1643 of the Code of Civil Procedure. In that section, in making provision for the payment of debts, there is given to 'judgments rendered against the decedent in his lifetime' the same preference against the general assets which is given to mortgages against the particular property covered by the lien of the mortgage. The payment of judg ments in the order of their dates' is the enforcement of their liens.

"And what is more persuasive still, to the same end, is the following provision of section 1505: 'A judgment creditor, having a judgment which was rendered against the testator or intestate in his lifetime, may redeem any real estate of the decedent from any sale under foreclosure or execution in like manner and with like effect as it the judgment debtor were still living.' This provision, read in conrection with the definition of a redemptioner (Code

against any property, unless the property is a homestead selected and recorded during the lifetime and continuing after the death of the

Civ. Proc., sec. 701, subd. 2), is a recognition of the existence of the posthumous judgment lien. It might be argued that such a provision is unnecessary if the continuance of the judgment lien were an admitted and recognized fact. But the provision is a part of the section which provides that no execution shall issue upon the ordinary money judgment, but that the judgment must be presented as a claim against the estate; and then as if to give assurance that the judgment loses no other attribute, comes this provision that the right to make a redemption (to which the existence of a lien is essential) remains unimpaired.

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"The concurrent provisions of the general practice and of the probate procedure seem to leave doubt of the intention of the code not to extinguish the lien upon the death of the debtor.

"The only apparent uncertainty arises from the fact that the judgment is required to be paid by the executor or administrator in the course of administration, and is not enforceable by execution. But this provision is not inconsistent with the continuance of the lien; and within the provision itself lies, as we have seen, a quasi recognition of the lien ranking it with the recognized lien of the mortgage.

"To look at the consequence of any other conclusion than the above is to find additional confirmation for the conclusion. If the judgment debtor could transfer his property and then die, leaving to his creditor the barren remedy of a claim against a depleted estate, judgment liens, which have been much favored by the enactment of 1895, would lose nearly all their value': Morton v. Adams, 124 Cal. 229, 230, 231, 71 Am. St. Rep. 53, 56 Pac. 1038.

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Thus, although the owner of the liened property dies before the expiration of two years after the accrual of a judgment lien, the lien continues two

years (or five, as the case may be) from its inception whether or not execution is levied: Estate of Wiley, 138 Cal. 301, 71 Pac. 441.

2 Unless Encumbered Property is Homestead.Compare Code of Civil Procedure, section 1475, in part: "If there be subsisting liens or encumbrances upon the homestead, the claims secured thereby must be presented and allowed as other claims against the estate."

Construing this code provision with section 1500 quoted in the preceding note, the operation of 1500 is limited to encumbrances against other property of the decedent than the homestead; but secured claims against his homestead must be presented; otherwise they cannot be foreclosed at all, whether the foreclosure action was commenced before or after the death of the owner of the homestead: Camp v. Grider, 62 Cal. 20; Wise v. Williams, 72 Cal. 544, 547, 14 Pac. 204; Bollinger v. Manning, 79 Cal. 7, 11, 12, 2 Pac. 375; Mechanics' Bldg. etc. Assn. v. King, 83 Cal. 440, 23 Pac. 376; Hearn v. Kennedy, 85 Cal. 55, 24 Pac. 606; Rosenberg v. Ford, 85 Cal. 610, 612, 24 Pac. 779; Sanders v. Russell, 86 Cal. 119, 122, 21 Am. St. Rep. 26, note, 24 Pac. 852; Perkins v. Onyett, 86 Cal. 348, 24 Pac. 1024; Wise v. Williams, 88 Cal. 30, 33, 25, Pac. 1064; McGahey v. Forrest, 109 Cal. 63, 6668, 41 Pac. 817; Hibernia Sav. etc. Soc. v. Thornton, 109 Cal. 427, 50 Am. St. Rep. 52, 42 Pac. 44.

3 Homestead Must Have Been Selected and Recorded During Lifetime.-"Section 1475 enumerates the things to be affected by its provisions, viz.: Homesteads 'selected and recorded prior to the death of the decedent,' and by implication excludes all others. It follows that homesteads set apart by the order of the superior court during the pendency of probate proceedings, and which had no existence prior to the death of the decedent, are not included in section 1475, but are left to the control of section 1500 of the same code, and that a prior lien thereon may be enforced without the necessity of presenting the claim secured thereby to the executor or administrator, provided the holder is willing to expressly waive in his complaint, and does waive, all recourse

owner thereof, is, as distinguished from the obligation secured thereby, not affected nor impaired by the death of the owner. But the holder of a demand secured by a subsisting encumbrance against any such homestead belonging to the estate of a decedent must, when presentation is possible, present his claim for allowance or rejection, and in case of allowance such claim must against any other property of the estate': McGahey v. Forrest, 109 Cal. 63, 69, 41 Pac. 817; Brown v. Sweet, 127 Cal. 332, 335, 59 Pac. 774.

4 Homestead Must Continue After the Death.The principle that a secured demand against the homestead must be presented does not apply, however, when the homestead was selected from the separate property of the wife and was mortgaged to secure the husband's debts, and the husband dies, as in that case the homestead is not a part of his estate, and vests in the wife upon his death: Bull v. Coe, 77 Cal. 54, 63, 11 Am. St. Rep. 235, 18 Pac. 808.

The same is true concerning a homestead selected by the wife from the separate property of the husband without his consent, as it terminates upon his death: Weinreich v. Hensley, 121 Cal. 647, 653, 656, 54 Pac. 254.

Likewise, where a homestead was declared on mortgaged community property and before the enforcement of the mortgage the wife died, as upon the death the property vested in the husband, no presentation of the mortgage against the estate of the wife is necessary as a prerequisite to the foreclosure of the mortgage: Bay City Bldg. etc. Assn. v. Broad, 136 Cal. 525, 69 Pac. 225.

5 Secured Demand Against Homestead Must be Presented.-Code of Civil Procedure, section 1475, in part: "If there be subsisting liens or encumbrances on the homestead, the claims secured thereby must be presented and allowed as other claims against the

be paid proportionately with other valid claims against the estate; and the encumbrance can be foreclosed against such homestead merely for such portion of the secured demand as may remain unpaid after the final distribution of the funds of the estate to the creditors, although the foreclosure action was pending at the time of the death. But where the entire estate is set apart estate. If the funds of the estate be adequate to pay all claims against the estate, the claims so secured must be paid out of such funds. If the funds of the estate be not sufficient for that purpose, the claims so secured shall be paid proportionately with other claims allowed, and the liens or encumbrances on the homestead shall only be enforced against the homestead for any deficiency remaining after such payment.' As amended, in effect April 16, 1880.

Rationale. The purpose of the legislature in providing that secured claims against the homestead must be presented and allowed as other claims against the estate is to preserve the homestead if possible: Camp v. Grider, 62 Cal. 20; Bollinger v. Manning, 79 Cal. 7, 11, 21 Pac. 375.

Thus, a claim against a homestead secured by a judgment lien must be presented: Sanders v. Russell, 86 Cal. 119, 122, 21 Am. St. Rep. 26, note, 24 Pac. 852.

6 Must be Presented Even Though Action was Pending at the Death.-Code of Civil Procedure, section 1502: "If an action is pending against the decedent at the time of his death, the plaintiff must in like manner present his claim to the executor or administrator for allowance or rejection, authentieated as in other cases; and no recovery shall be had in the action unless proof be made of the presentations required."

"Section 1502 of the Code of Civil Procedure sim ply means that when an action is pending against a decedent at the time of his death, the plaintiff

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