Herbert

The mortgagor Burke having conveyed the mortgaged premises by deed of gift to his wife, and having thenceforth no interest in the property, his personal representative was not a necessary party to the foreclosure suit. (Story’s Eq. PL, sec. 197, and authorities there cited.)

The first of the promissory notes, for the satisfaction of which a foreclosure of the mortgage is sought, became due on the 17th of June, 1871, and the last of them on the 17th of December, 1871. The wife, to whom the property was conveyed, died October 23rd, 1875, and administration on her estate was granted December 27th, 1875. The action was commenced February 8th, 1876, and the administrator and children of the deceased wife were made parties defendant. The defense relied upon is the Statute of Limitations.

But sec. 353 of the Code of Civil Procedure provides that if a person against whom an action may be brought die before the expiration of the time limited for the commencement of the action, and the cause of action survive, the action may be commenced against his representatives .after the expiration of that time, and within one year after the issuing of letters testamentary or of administration.

The…