Evans

This action was brought to foreclose a mortgage of real estate, executed by one Joseph Sivley, in favor of plaintiff, on the twelfth day of June, 1885. Said Sivley died December 10,1886, and was owner of the real estate at the time of his death. The mortgage was given to secure the paj^ment of a note for four hundred dollars, and interest. It became due June 12, 1886. *182 The suit was commenced June 23,1894. Defendant Johnston was appointed administrator of the estate of Joseph Sivley, June 10, 1887, and is still such administrator. July 19,1887, plaintiff commenced an action in the superior court of Lassen county to foreclose this mortgage, and caused summon; to be issued on the same day. Nothing further was done in the case until January 20, 1894, when an order dismissing the case without prejudice to.a new action was made by the court and entered in its minutes.

On the twenty-eighth day of July, 1887, and within the timé allowed by law for the presentation of claims against the estate, plaintiff presented to the administrator his claim upon the note, duly verified, and the same was then allowed by the administrator. It is found that the mortgage was also presented as a part…