HIBERNIA SAVINGS AND LOAN SOCIETY, Respondent, v. DENNIS JORDAN, Appellant, 7 Cal. Unrep. 398

ROSS, J. The mortgage, for the foreclosure of which this action was brought, was executed in March, 1872, and was made payable three years after its date. The mortgager died in December, 1872. Administration upon her estate was had. Notice to creditors was published in February, 1873. The claim in suit was never presented to the representative of the estate for allowance, but the plaintiff, in 1877, commenced the present action, and in the complaint expressly waived all recourse against any other property of the estate than that embraced in the mortgage.

According to the law in force at the time the mortgage was executed, presentation of all claims to the representative of the estate for allowance was necessary; but in January, 1873, it was provided by statute that a.mortgage claim need not be presented where all recourse against all other than the mortgaged property is expressly waived in the complaint. Such was the law at the time the notice was given, and such it remained until July, 1874.

According to the law, therefore, under which the notice was given, the plaintiff was not required to present its claim for allowance within the time mentioned in the notice, nor at all. In July, 1874, however, the law was again changed and the statute then made to read as follows: “Section 1493.

If a claim arising upon a contract heretofore made be not presented within the time limited in the notice, it is barred forever, except as follows: If it be not then due, or if it be contingent, it may be presented within one month after it becomes due or absolute, if it be made to appear by the affidavit of the claimant, to the satisfaction of the executor or administrator and the probate judge, that the claimant had no notice, as provided in this chapter, by reason of being out of the state, it may be presented at any time before a decree of distribution is entered.

A claim for a deficiency remaining unpaid after a sale of property of the estate mortgaged or pledged, must be presented within one month after such deficiency is ascertained.

All claims arising upon contracts hereafter made, whether the same be due, not due, or contingent, must be presented within the time limited in the notice, and any claim not so presented is barred forever; provided, however, that when it is made to appear by the affidavit of the claimant, to the satisfaction of the executor or administrator and the probate judge, that the claimant had no notice, as provided in this chapter, by reason of being out of the state, it may be presented at any time before a. decree of distribution is entered.” “Section 1500.

No holder of any claim against an estate shall maintain any action thereon, unless the claim is first presented to the executor or administrator.” Unless these sections are made by construction to retroact, we do not see what application they can have to the plaintiff’s case. Not only is there nothing in the sections themselves to indicate an intention on the part of the legislature to give them such effect, but

section 3 of the same code (Code Civ. Proc.) declares that “no part of it is retroactive unless expressly so declared. ’ ’ To hold the plaintiff’s claim barred by the statute would be to give an effect to the notice which it did not and could not have under the law under which it was published, and would require us to give to

section 1493, above quoted, a retroactive effect when there is nothing in the

section itself demanding such construction, and when there are other sections of the same code indicating that it could not be given. In our opinion, the judgment should be affirmed, and it is so ordered. We concur: McKinstry, J.; Thornton, J. I concur in the judgment: Myrick, J. Morrison, C. J., not having heard the argument, took no

part in the decision of this case. McKee and Sharpstein, JJ., dissented.