within one month after it becomes due or absolute.

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 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." Practically, this enactment worked no change in the rule which required presentation of all claims against an estate. By its provisions, all claims which were due had to be presented within the ten months of the notice to creditors, but as to claims which were contingent, or had not become due within the time limited in the notice, the time for presentation was fixed at one month after they became due or absolute, instead of ten months thereafter, as had been allowed by Section 131 of the Probate Law.

The principal change was made by Section 1500 of the Code of Civil Procedure, which was enacted in the place of Section 136 of the Probate Law. The rule of Section 136, which declared that "no holder of any claim against an estate shall maintain any action thereon, unless the claim is first presented to the executor or administrator," was still retained; but an exception to it was made in favor of a mortgage or other lien upon property of the estate. A right of action to foreclose the lien without presentation of the claim, which the lien was made to secure, was given to the holder, where recourse against any other property of the estate was waived. This made the holder of such a claim a preferred creditor of the estate to the extent of the lien which he had upon the property of the estate; and the claim secured by the lien was exceptional to other claims against the estate only so far as the new remedy created by the law. But the law which created this remedy did not interfere with any other remedy belonging to creditors of the estate. Lienholding creditors had, in fact, under the law, two remedies for the enforcement of their claims. One was a right of action by presentation, according to law, under the notice given to creditors; the other, a right of action to foreclose a lien, without presentation of the claim secured by the lien. The one was affected by the notice given to creditors of the estate; the other was not. One had to be resorted to within the time prescribed by the statute for presentation; the other could be availed of during the existence of the law which conferred it, at any time after the debt became due, and before it was barred by the general statute of limitation.

But the right to a particular remedy is not a vested right; it depends upon a continuance of the law which creates it, and the law is subject, at all times, to the will of the Legislature. (Ogden vs. Saunders, 12 Wheat. 276; Stoddart vs. Smith, 6 Binn. 355; Tuolumne Redemption Company vs. Sedgwick, 15 Cal. 285; Hinckle vs. Peffort, 5 Barr. 196.) If it be repealed the right no longer exists, unless it has been expressly reserved by the repealing statute, or has been perfected by steps taken under the law while it existed. Now, the Act of 1873, which gave the remedy by action of foreclosure, was repealed by an amendment to Section 1500 of the Code of Civil Procedure, which took effect on the first day of July, 1874. On and after that date the law, so far as it gave to the holder of a mortgage claim against an estate the right to foreclose the mortgage without presentation, was as though it had never existed, except as to past actions which may have been commenced under it, and such claimants were left to enforce their claims against the estate by remedies known to the existing law. In place of the law repealed, the former rule was reinstated: "That no holder of any claim against an estate shall maintain any action thereon unless the claim is first presented to the executor or administrator." This existing law was applicable to the claim in controversy, unless the plaintiff was, by the repealing law, deprived of all remedy for its enforcement. But while Section 1500 was repealed, Section 1493 was left unrepealed and unaltered, except as to a mere matter of phraseology in relation to claims arising upon contracts which did not become due, or were contingent, during the time limited in the notice to creditors. The phrases, "If it is not then due, or if it is contingent," which occur in the section as it was adopted on the first day of January, 1873, were changed to: "If it be not then due, or if it be contingent." mere change of phraseology wrought no distinct change in the law, for the substituted phrases do not impart an intention to change the law in any other respect, so far as the presentation of claims was concerned. (Yates' Case, 4 Johns. 359; Taylor vs. Delaney, 2 Caines Rep. 150.)

This

Section 1493, as supervised and adopted by the Legislature in 1874, being substantially the same that it was from the first day of January, 1873, as to contracts theretofore made, and the remedy of foreclosure of a mortgage lien without presentation being abolished by law, the position of the plaintiff under the law as it existed on the first day of July, 1874, was what it had always been, that of a resident creditor of the State, with notice of the publication of notice to

creditors, having a claim arising out of a contract which had been made on the second day of March, 1872. The contract was, therefore, made before Section 1493 was adopted or revised; and the claim which arose out of it was, by the very terms of the statute, included within the provisions of the statute, and affected by the notice to creditors. The contract, according to its terms, did not become due within the ten months of the notice. So that the claim arising out of it was not a claim which the holder was required to present within ten months of the notice. It was a claim which did not become due within that time, and for its presentation the statute provided a different time. The claim of the plaintiff was, therefore, one of those claims against the estate, which were an exception to the time for presentation to the executors; but an exception to the time prescribed for presentation does not interfere with or destroy the rule of the statute which requires presentation to be made within statutory time for the enforcement of the claim. To that rule there was no exception, except in the case of non-resident creditors of the estate who had had no notice of the publication of notice to creditors. But the plaintiff did not come within that exception, because it was a resident creditor and had notice, therefore the claim was affected by the notice.

No question is made as to the legality of the notice. Its publication was fully completed and ended, and it was valid and binding, as part of the proceedings of administration of the estate, upon all claimants who had notice of it. But it is urged that the notice could not affect the plaintiff's claim, because at the time it was given the law allowed the holder of such a claim another remedy, and during that time the plaintiff was not compelled to resort to any other remedy; therefore, it is claimed, that the notice could not affect the claim, and the legislation of 1874 could not retroact so as to give it any effect.

The Act of 1874 did not act in any way upon the notice to creditors. The notice was a necessary step in the administration of the estate, required by law for the purpose of notifying creditors of the estate to avail themselves of the remedy given by law for the enforcement of their claims against the estate, within the time prescribed by the law. When the notice was fully completed and ended, it had discharged its office, and no subsequent legislation could validate or invalidate it, so as to affect any rights which the estate, or creditors of the estate, may have acquired under it. The Act of 1874 did not attempt to do so. It was not

retroactive, except as to remedy; but retroactive legislation is competent to affect remedy. The Act simply abolished a particular remedy. In doing that it did not divest the plaintiff of any vested right which had been acquired under the repealed law. No rights acquired, or proceedings taken, under the provisions of a repealed law, could be impaired by the repeal. (Section 2104, C. C. P.) But no proceedings had been commenced or were taken by the plaintiff before the remedy by foreclosure was abolished; none could have been, for the claim was not due until 1875; and no vested right in the contract, out of which the claim rose, was in any way affected or impaired; for although a peculiar remedy was taken away, a substantial remedy, affected by the notice to creditors, was left to plaintiff. That remedy always existed, and was always available until barred by the statute. It was not even necessary for the plaintiff to delay presentation until the claim became due. In Ricketson vs. Richardson, 19 Cal. 354, the Court say: "The statute does not require a presentation to be postponed until after publication of the notice by executors. The holder may anticipate such publication." And in Field vs. Field, 77 N. Y. 294, the Court of Appeals of New York say: "Claims against an estate may be presented any time after the executors qualify and enter on the discharge of their duties; and their decision thereon, before publication of notice, has the same effect as if made after publication."

Both before and after the plaintiff's claim became due the remedy of foreclosure, without presentation, did not exist, except as to the time between January 1, 1873, and July 1, 1874. Before and after the claim became due the remedy by presentation did exist; and it was a remedy affected by the notice of creditors, for as a claim against the estate, it was held by the plaintiff as a resident creditor of the estate. As a remedy, it was complete for the enforcement of the claim against the estate; for the allowance of the claim by the executors would have resulted in a quasi judgment in favor of the claimant, which, when ordered to be paid by the Probate Court, would ripen into a final judgment. Thus the creditor of an estate not only secures payment of his claim out of the assets in the hands of the executor or the administrator, but, if his claim is secured by a mortgage, or other lien, upon any of the assets of the estate, he keeps alive the remedy upon the claim, and so upholds the remedy to foreclose the lien. (Fallon vs. Butler, 21 Cal. 24; Willis vs. Farley, 24 Id. 490.)

If a creditor who has had notice fails to avail himself of

this remedy when none other exists, within the time allowed by law for that purpose, his claim becomes, in the language of the existing law, "forever barred, and he cannot maintain any action thereon."

For these reasons I think the judgment should be reversed.

MCKEE, J. I concur in the dissenting opinion of Mr. Justice McKee: Sharpstein, J.

DEPARTMENT No. 1.

[Filed November 26, 1880.]
No. 6774.

JAMES CAMP ET AL., RESPONDENTS,

VS.

REBECCA C. GRIDER, ADMINISTRATRIX, ETC., APPELLANT.

AFTER ACQUIRED TITLE INURES TO BENEFIT OF MORTGAGEE. That the subsequently acquired title of a mortgagor inures to the benefit of the mortgagee is no longer an open question in this State.

MORTGAGE ON LAND AFTERWARDS BY PROBATE COURT SET ASIDE AS HOMESTEAD. Where husband and wife mortgaged public land, to which the husband afterwards acquired title, and which, after the death of the husband, was set aside as homestead by the Probate Court: Held, in a subsequent action to foreclose the mortgage, that such action might be maintained, under Section 1500 of the Code of Civil Procedure, without presentation of the mortgage to the representative of deceased; but that in such case the decree for the amount due should run only against the representative of deceased as such representative, and should not provide for any judgment in case of deficiency. Appeal from the District Court of the Eighth Judicial District, Del Norte County.

L. F. Cooper and Wm. Gibbons, for appellant.
James E. Murphy, for respondents.

Ross, J., delivered the opinion of the Court:

L. B. Grider, on the twenty-fifth of June, 1872, executed to the plaintiffs his promissory note for the sum of twenty-three hundred and twenty dollars. To secure its payment, he and his wife, Rebecca Č. Grider, joined in the execution to the plaintiffs of a mortgage upon certain property, a part of which the husband was at the time cultivating, but the title to which was then in the Government of the United States. Grider afterwards, in the year 1873, obtained the title to the property. That the title thus acquired by him inured to the benefit of his mortgagees is no longer an open question in this State. (Christy vs. Dana, 42 Cal. 179; Kirkaldie vs. Larrabee, 31 Cal. 445; Clark vs. Baker, 14 Cal. 612.)