ESTATE OF H. SCHROEDER.

No. 1333 --- 1872

ORDER OF SALE OF REAL ESTATE --- Grounds of opposition. ---It is no ground of opposition to the granting of an order of sale of real estate. That there is a litigated claim held by estate against the grantee of a devisee, on which claim, the debtor claims there is nothing due. It is not necessary to abide the determination of such litigation before granting the order of sale.

STATUTE OF LIMITATIONS. ---The allowance of a claim stays the running of the prescription.

Construing sections C. C. P., 356, 363, 1540; AFFIRMED, 46 Cal., 304.

F. G. NEWLANDS for petitioner.

J. A. FLETCHER, contra.

Streitberger was in possession of real estate of the deceased, and the administrator brought ejectment alleging three thousand dollars due for rents; and Streitberger defended the action. On an application by the administrator for sale of real estate, Streitberger, grantee of a devisee interposed the objection that the personal estate had not been exhausted, viz: The claim against himself for the rents, but admitted that he claimed not to be indebted.

Held, his objection to the sale is not valid.

In this case it was also decided that when a claim against the deceased has been allowed and approved, the statute of limitations does not apply, and the debt will be paid in due course, notwithstanding several years elapsed after the allowance.

Transcribed by Patricia Seabolt & Sue Wood.

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© 2007 Patricia Seabolt & Sue Wood.

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