¶1L. B. Grider, on the twenty-fifth of June, 1872, executed to the plaintiffs his promissory note for the sum of twenty-threo hundred and twenty dollars. To secure its payment, he and his wife, Rebecca C. 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. The title thus acquired by him inured to the benefit of his mortgagors. (Christy v. Dana, 42 Cal. 179; Kirkaldie v. Larrabee, 31 id. 445; Clark v. Baker, 14 id. 612.) Subsequently, to wit, on the twenty-first of October, 1874, Grider filed, pursuant to the statutes of the State, a declaration of homestead on the mortgaged premises, and on or about the twenty-sixth of February, 1878, died in the county of Del Norte, leaving as his sole heir his widow, the defendant Rebecca C. Grider. On the first of June thereafter letters of administration upon the estate of the deceased were duly granted by the Probate Court of said county to the said Rebecca, who duly qualified as administratrix and entered upon the discharge of the duties of her office. On the twenty-first of June, 1878, the Probate Court, after due proceedings had, set off the said premises to the said Rebecca as a homestead. The present action was instituted to foreclose the mortgage. The complaint does not aver, nor do the findings show, that the mortgage claim was ever presented to the administratrix for allowance, but the plaintiffs in their complaint allege that “ they expressly waive any and all recourse against any other property of the estate of the said L. B. Grider, deceased, other than the premises described in said mortgage;” and they contend, that having thus waived all recourse against any other property of the estate, they are entitled to maintain this action without presentation of the mortgage claim, by *26virtue of Section 1500 of the Code of Civil Procedure, which is, and since March 15,1876, has been, as follows: "No holder of any claim against an estate shall maintain any action thereon, unless the claim is first presented to the executor or administrator, except in the following case : An action by any holder of a mortgage or lien to enforce the same against the property of the estate subject thereto, where all recourse against any other property of the estate is expressly waived in the complaint.”
¶2The appellant, who was the defendant in the Court below, relies on Section 1475 of the same Code, which from March 24, 1874, to April 16, 1880, read thus: “If the homestead selected and recorded prior to the death of the decedent be returned in the inventory appraised at not exceeding five thousand dollars in value, or was previously appraised as provided in the Civil Code, and such appraised value did not exceed that sum, the Probate Court must, by order, set it off to the persons in whom title is vested by the preceding section. If there be subsisting liens, or incumbrances on the homestead, the claims secured thereby must be presented and allowed as other claims against the estate. If the funds of the estate be adequate to pay all claims allowed 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 proportionally with other claims allowed, and the liens or incumbrances on the homestead shall only be enforced against the homestead for any deficiency remaining after such payment.”
¶3Both of the sections quoted were in force at the time of Grider’s death and at the time of the commencement of the present action. They should be so construed, as to maintain both, if possible. This can be done by limiting the operation of Section 1500 to all mortgages and liens other than liens or incumbrances on the homestead, specifically required to be presented by Section 1475. (Gonzales v. Wasson, 51 Cal. 297; Langenour v. French, 34 id. 92.)
¶4The purpose of the Legislature in providing, by Section 1475, that if there be subsisting liens or incumbrances on the homestead, the claims secured thereby must be presented and allowed as other claims against the estate, was undoubtedly *27to preserve the homestead if possible. That purpose is as clearly shown as can be by the language employed in the section: “If the funds of the estate be adequate to pay all claims allowed 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 proportionally with other claims allowed;” and this is followed with the express declaration that “ the liens or incumbrances on the homestead shall only be enforced against the homestead for any deficiency remaining after such payment.”
¶5Judgment reversed and cause remanded, with directions to the Court below to sustain the demurrer to the complaint.
¶6Morrison, C. J., and Thornton, Myrick, and McKinstry, JJ., concurred.
¶7McKee, J., dissented,