unpaid purchase money," and thereupon the administratrix, "in order to settle said controversy and in consideration thereof, agreed to extend the payment," etc.; and the court found that the extension was granted till May 19, 1892, "in consequence of the pendency of the Baldwin suit"; but here is no compromise of conflicting claims alleged or found; defendants did not abate, or agree to abate, any part of their contingent demand against the estate; the most that can by inference be extracted from the finding is that the administratrix agreed to delay collection of the entire debt for a period of three years in order to see if a contingent right of setoff in the defendants would become absolute; and this was done at a time when the administration had been in progress nearly a year; when the contingent demand of the defendants had not been allowed as a claim against the estate; and thereby the mortgage security, at least, of the first note was brought within the danger line of the statute of limitations. We think it plain that she did not bind the estate; it was an unwarranted attempt to tie the hands of the heirs and other persons interested in enforcing collection of the debt. (Estate of Page, 57 Cal. 238; Estate of Moore, 72 Cal. 342, and cases cited; Estate of Loper, 2 Redf. 545; Woerner on Administration, secs. 353, 356; Landry v. Delas, 25 La. Ann. 181.)

2. The deed to defendants contained no warranty beyond that implied from the operative word "grant" used therein (Civ. Code, sec. 1113; Bryan v. Swain, 56 Cal. 616); and this did not extend to the claim of Baldwin; hence the partial defense to the notes sustained by the court rests on the agreement of indemnity against loss executed by the Welches November 7, 1887. It is not clear that loss accrued from the judgment recovered by Baldwin in a suit to which defendants were not parties; but, however this may be, that agreement contained nothing to show that it modified the obligation of defendants on their notes and mortgage; it was the mere personal promise of Welch and his wife to "reimburse" the

defendants at the rate of $200 per acre for so much of the land as might be lost in the Baldwin suit; when the notes fell due they were payable according to their terms, notwithstanding the agreement for indemnity, unless there had then occurred a loss within its meaning, in which event perhaps a right would arise thereon in the nature of setoff against the notes; as a contract creating a contingent liability, therefore, it should have been presented to the administratrix for allowance as a claim against the estate, and not having been so presented, by the terms of the statute, so far as the estate is concerned, it "is barred forever," and the court erred in considering it a proper ground for rebate from the amount due plaintiff on the notes.

(Code Civ. Proc., 467; McDonald v.

sec. 1493; Verdier v. Roach, 96 Cal. McElroy, 60 Cal. 496; Shelton v. St. Clair, 64 Ala. 565.)

3. Some of the findings of the court concerning the location of the land and the alleged mistake in that behalf are contradictory and unintelligible. The matters appearing in these findings, however, are not essential to the disposition of the case, for other facts are found and not disputed which show that no case for rescission is made. It thus appears that at the time of the purchase of the land described in the mortgage the defendants "entered into the possession of the said lands and ever since have been and now are . . . in the undisturbed possession of the whole thereof." Two views of this finding are possible: 1. If the land thus possessed by defendants is located as the defendants say the description in the deed and mortgage does locate it, i. e., elsewhere than at the place shown to them by Welch, then of course the circumstance of possession as found negatives the idea of any mistake as to its situation; there could be no mistake if they received actual possession of the land which the deed actually conveyed; 2. But if, as was probably the fact, and as the evidence tends to show, the defendants received and yet hold possession of the land which Welch pointed out to them and which they believed they were purchasing from him, then, though

it be conceded that the deed and mortgage do not describe that tract, yet the defendants have not taken the steps requisite to entitle them to rescind; they show no offer to restore everything of value received under the contract; this was of course necessary (Civ. Code, secs. 1691, 3407); true, the answer of defendants alleges that they "are now ready and willing and offer to reconvey. . . . all of the right, title, and interest that they have acquired . . . . by reason of said conveyance made by said Welch and wife to these defendants," etc.; but according to their allegations nothing passed by said conveyance; they allege no offer at any time to redeliver possession of the land they actually received nor to account for the profits thereof, nor any showing that the use of the same was of no value. The court did not err in refusing a rescission. (Fratt v. Fiske, 17 Cal. 380; Haynes v. White, 55 Cal. 38; Bryan v. Swain, supra; Alden v. Pryal, 60 Cal. 215; Hammond v. Wallace, 85 Cal. 532; 20 Am. St. Rep. 239.)

The order denying defendants' motion for new trial should be affirmed, and the cause should be remanded with instructions to the court below to modify its conclusions of law on the findings so as to omit therefrom any deductions in the nature of setoff against the amount found due to plaintiff on the notes in suit, and to modify the judgment so as to direct the recovery by plaintiff of the full amount found due to him without abatement on account of said deductions; and, so modified, the judgment should be affirmed.

SEARLS, C., and HAYNES, C., concurred.

For the reasons given in the foregoing opinion the order denying defendants' motion for new trial is affirmed, and the cause is remanded with instructions to the court below to modify its conclusions of law on the findings so as to omit therefrom any deductions in the nature of setoff against the amount found due to plaintiff on the notes in suit, and to modify the judgment so

as to direct the recovery by plaintiff of the full amount found due to him without abatement on account of said deductions; and, so modified, the judgment is affirmed. MCFARLAND, J., HENSHAW, J., TEMPLE, J.

Hearing in Bank denied.

[No. 15956. Department One.—October 9, 1895.]

THE HIBERNIA SAVINGS & LOAN SOCIETY, RESPONDENT, v. R. S. THORNTON, EXECUTOR, ETC., APPELLANT.

MORTGAGE UPON HOMESTEAD-ESTATE OF DECEASED WIFE-FAILURE TO PRESENT CLAIM-IMPROPER ACTION UPON NOTE.-Where a mortgage upon a homestead was given to secure a note executed by the husband and wife, the mortgagee cannot bring an action and have judgment upon the note without foreclosure of the mortgage, upon the alleged ground that the mortgage lien was extinguished by failure to present a claim against the estate of the deceased wife.

ID. NEGLIGENCE OF MORTGAGEE-WAIVER OF SECURITY.-When a mortgagee by his own act or negligence deprives himself of the right to foreclose the mortgage, he at the same time deprives himself of the right to an action upon the note, and he cannot, without the consent of the mortgagor, release the mortgage, or waive the security, for the purpose of bringing an action upon the note.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. HEBBARD, Judge.

The facts are stated in the opinion of the court.

B. B. Newman, for Appellant.

The action upon the note alone could not have been maintained without foreclosing the lien of the mortgage which was upon real estate. (Code Civ. Proc., sec. 726; Biddel v. Brizzolara, 64 Cal. 354; Porter v. Muller, 65 Cal. 512, 513; Hall v. Arnott, 80 Cal. 348-55; Barbieri v. Ramelli, 84 Cal. 158; Powell v. Patison, 100 Cal. 236; Crim v. Kessing, 89 Cal. 478-87; 23 Am. St. Rep. 491; Toby v. Oregon Pac. R. R. Co., 98 Cal. 490-94.)

Tobin & Tobin, for Respondent.

Appellant will not be permitted in the supreme court to raise, for the first time, the defense that the action on the note alone could not be maintained. (Hayne on New Trial and Appeal, sec. 280, p. 831; Code Civ. Proc., sec. 434, p. 178; Reagan v. Justices' Court, 75 Cal. 255; Cameron v. San Francisco, 68 Cal. 390; Kelley v. Kriess, 68 Cal. 213.)

HARRISON, J.-The defendant, Charles O'Neill, and his wife, Elizabeth, executed to the plaintiff their promissory note August 24, 1888, and, at the same time, for the purpose of securing its payment, executed a mortgage of certain real property upon which they had previously made a declaration of homestead. The property was the community property of the said Charles and Elizabeth at the time of filing their declaration of homestead, and remained such until the death of Elizabeth. Elizabeth died March 27, 1890, and administration was had upon her estate in the superior court for the city and county of San Francisco. The plaintiff did not present any claim against her estate upon the note and mortgage, and on July 26, 1892, the superior court set apart the mortgaged premises to the defendant, Charles O'Neill, as the surviving husband. The present action is brought against Charles O'Neill upon the note alone, to recover judgment for its amount. The superior court held that, by reason of the failure of the plaintiff to present his claim to the administrator of the estate of Elizabeth, the mortgage lien was extinguished by virtue of section 1475 of the Code of Civil Procedure, and rendered a personal judgment against the defendant for the amount of the note. The defendant has appealed from the judgment upon the judgment-roll, upon the ground that the findings do not support the judgment.

In Barbieri v. Ramelli, 84 Cal. 154, it was held that an action to recover a personal judgment upon a debt for which a mortgage security has been given, even