of his argument of the case. Most of the objectionable matter in the address of the district attorney occurred during the course of his comments upon the evidence which had been presented concerning the particular acts and conduct of the defendant as indicating him to be a sane but evil-minded man. As to nearly all of these remarks no objection was urged at the trial and no request made for an instruction thereon. It is too late now to urge misconduct as to these matters as to which, if prompt objection had been made, their prejudicial effect, if any, might have been obviated by their withdrawal or by a suitable instruction from the court to the jury to disregard them. As to any objections which were made at the time to the remarks of the district attorney, the record shows that the court did admonish the jury at the time to disregard the obnoxious statements of the district attorney. We perceive no reversible error as to these matters.

points urged by the apWe find no merit in any

The foregoing covers all of the pellant for a reversal of the case. of them. The record in this case, taken as a whole, sufficiently shows that the defendant, as the consummation of an evil and immoral life, committed a willful, premeditated, and unprovoked murder, and that he has been fairly tried and lawfully convicted of his crime.

Judgment affirmed.

Lawlor, J., Waste, J., Shurtleff, J., Shaw, C. J., and Sloane, J., concurred.

WILBUR, J., Concurring.-I concur in the judgment of affirmance and in the main with what is said in the opinion of Mr. Justice Richards. An investigation as to the insanity of a defendant in a murder case may take as wide a range as the investigation of that subject in any other type of case, and the limitations to be placed upon this testimony is largely in the discretion of the trial court. (Estate of Baker, 176 Cal. 430 [168 Pac. 881].) The declarations of the defendant are admissible in evidence as verbal acts tending to show the mental condition of the defendant. The fact that such declarations might tend to degrade the character of the defendant or excite prejudice against him is no reason for excluding the evidence. A de

fendant who has placed his mental condition in issue and who admits that he committed the criminal act charged against him opens the door to the widest possible investigation of his mental status, and he cannot complain of the fact that the people present and rely upon evidence which is inconsistent with his theory as to his insanity.

The defendant claims that he is suffering from a type of insanity known as paranoia. This type of insanity always manifests itself by one or more delusions. The delusion apparently relied upon by the defendant in this case is that he was wronged by the man he killed. The evidence is insufficient to establish that such belief was an insane delusion, for the evidence clearly shows that the defendant believed, and had reason to believe, that the deceased and Mrs. Peirano entered into a conspiracy to compel the defendant to marry Mrs. Peirano and that in the course of this conspiracy the deceased took advantage of the fact that the defendant was having meretricious relations with the woman by himself causing the woman to become pregnant and then prompting the woman to claim that the child was begotten by the defendant and to demand that the defendant marry her for that reason. As ground for this belief the defendant knew that Cox had asked him to marry Mrs. Peirano about the time the child was begotten; that when it was born Mrs. Peirano gave the defendant's name as the father of the child and demanded that he marry her and that the woman persistently refused to show the defendant the child, although he agreed to marry her if the child appeared to be his. After nearly five years' effort to have the birth certificate changed, the defendant on the day the murder was committed was completely baffled in his efforts to obtain redress by having Mrs. Peirano arrested. Immediately after the refusal of the district attorney and sheriff to act he procured the gun and killed Cox, the other member of the conspiracy. It is evident that the defendant's conclusion that he had been wronged by Cox was not an insane delusion, for it was based upon reason and facts.

I feel that I do not sufficiently understand the sex psychology of an illicit triangle of love and passion to join in the statement of the majority opinion in that regard. As I understand the main opinion, it advances the theory that the defendant killed Cox because he thought the

woman showed Cox a higher degree of love than she did him; but it appears that both Cox and the woman wanted the defendant to marry her and both claimed that he Iwas the father of the child. The defendant seems to have believed that he was the victim of too great a demonstration of affection instead of too little.

I do not concur in the concluding paragraph of the main opinion because I do not feel that we are called upon to pass judgment upon the previous life of the defendant.

[S. F. No. 9321. In Bank.-March 8, 1922.]

JOHN HINKEL, Respondent, v. E. A. CROWSON,

[1] VENDOR'S LIEN

Appellant.

HOMESTEAD - ESTATE OF DECEASED PERSONPRESENTATION OF CLAIM.-Under section 1475 of the Code of Civil Procedure a claimant under a vendor's lien against a homestead of a deceased person must present his claim to the administrator of the estate of the decedent before he can foreclose his lien, and he cannot escape the requirements of that section on the ground that no person has applied for or received letters of administration upon the estate.

[2] ID.-LIENS.-A vendor's right to resort to the land for payment of the purchase price thereof is a lien, and one of the objects of section 1475 of the Code of Civil Procedure is to protect a homestead from vendors' liens, as well as other liens, and no sound distinction exists upon which to differentiate a vendor's lien from any other lien on the premises embraced in the homestead.

APPEAL from a judgment of the Superior Court of Alameda County. Dudley Kinsell, Judge. Reversed.

The facts are stated in the opinion of the court.

James F. Sheehan, Charles J. Heggerty and Knight & Heggerty for Appellant.

Richard B. Bell and R. M. F. Soto for Respondent.

SHAW, C. J.-The plaintiff sued to foreclose an alleged vendor's lien. The complaint alleges the sale and convey

ance of the lot in question by plaintiff to one Florence G. Hinkel for the price of $4,000 on November 27, 1914, the giving of a note for the price by said vendee; that it was agreed at the time that she would execute to the plaintiff a mortgage on the lot to secure the payment of the price, but that she failed to do so; that the price is unpaid, except to the amount of $510; that said Florence G. Hinkel afterward married the defendant E. A. Crowson and thereupon filed a declaration of homestead on the lot for the benefit of herself and said Crowson; that she died on October 16, 1916, and said E. A. Crowson, by proceedings under section 1723 of the Code of Civil Procedure, procured an order of the superior court of the county on May 7, 1917, setting apart said lot to Crowson as surviving husband of said decedent, and that Crowson has since intermarried with the defendant, Katherine M. Crowson, who is now his wife. It also expressly waived all recourse by the plaintiff to any other property of the estate of Florence G. Crowson, deceased, for the payment or satisfaction of said debt.

The answer admitted, by failing to deny, the allegation that Florence G. Hinkel had agreed to execute a mortgage on the lot to secure the price aforesaid, but alleged that a mortgage for the price was executed by her to the plaintiff and that he afterward released it. It alleged that the conveyance of the lot to Florence G. Hinkel was a gift, and denied that any money was owing to plaintiff as the price of said lot, or at all.

The court found that the allegations of the complaint were true; that no mortgage was ever executed to plaintiff by said Florence G. Hinkel to secure the price of said lot; that no administration has ever been had upon the estate of said decedent and that none is pending, and that $4,551.07 was due to plaintiff for the principal and interest of the note given for the price of the lot. Thereupon judgment was entered for the foreclosure and sale of the lot to discharge the vendor's lien of the plaintiff thereon. From this judgment the defendant, E. A. Crowson, appeals. The appeal is upon the judgment-roll alone.

The appellant contends that the complaint and findings are insufficient to support the judgment because it is neither alleged nor found that any claim for the payment of the balance due on the note was presented to an adminis

trator of the estate of the deceased Florence G. Crowson for allowance. Section 1475 of the Code of Civil Procedure provides that if there be subsisting liens or encumbrances on the homestead of a deceased person the claim secured thereby must be presented to the administrator and the funds in his hands applied thereon, and that the lien shall only be enforced against the homestead for any deficiency remaining after the other funds of the estate have been applied in payment of the claim.

In Camp v. Grider, 62 Cal. 20, the owner of the homestead died leaving the homestead encumbered by a mortgage. There was administration upon the estate, but no claim for the mortgage debt was presented for allowance. The complaint in foreclosure alleged that the plaintiff waived all recourse against any other property of the estate, as the complaint does here. The court, holding that the complaint did not state a cause of action, said: "The purpose of the legislature in providing, by section 1475, that if there be subsisting liens or encumbrances on the homestead the claims secured thereby must be presented and allowed as other claims against the estate, was undoubtedly to preserve the homestead if possible." This case was followed in Bollinger v. Manning, 79 Cal. 7 [21 Pac. 375], where, after the foreclosure suit was begun and before the trial, the mortgagor died. No claim was presented to the administrator of the estate of the mortgagor within the time prescribed by the law. The plaintiff then amended his complaint by averring that he waived all recourse against any property of the estate, except that covered by the mortgage. The court found that there was not, and never had been, any property or assets of the estate that could be subjected to the payment of the mortgage except the property mortgaged, but gave judgment for the defendants and this judgment was affirmed. This court held that the fact that there were no other assets did not change the rule that the claim must be presented to the administrator and allowed, as required by section 1475, as held in Camp v. Grider, supra. With respect to the effect of that section, the court said: "The provision of the section is general, that claims secured by liens or encumbrances on the homestead, selected and recorded prior to the death of the deceased, must be presented and allowed as other