HARWOOD v. MARYE et al., 8 Cal. 580

Terry, C. J., delivered the opinion of the Court—Burnett, J., and Field, J., concurring. This action was instituted to foreclose a mortgage on land executed by George F. Marye and J. Caleb Smith. The complaint, after setting out the note and mortgage sued on, alleges that Smith, one of the mortgagors, is dead; that one William Smith, a resident of Virginia, is his heir, and asks that service be made on the heir, by publication, which was done.

It does not appear whether there was any administrator of the estate of Smith; the plaintiff seems to have proceeded under the idea that the heir was the only person interested in or capable of exercising control over the real estate of the deceased. This doctrine never obtained in California. By our statute “regulating the settlement of estates,” all property of the deceased, both real and personal, goes into the possession of the administrator. The administrator being entitled to the possession of the real property, must be made a party to all suits affecting it.

The complaint is therefore defective for want of proper parties. Judgment reversed, and bill dismissed.