Vandall v. Teague

CHIPMAN, C.

Foreclosure of mortgage. Plaintiff had judgment of foreclosure as to the defendant the administrator of the estate of William Teague, but judgment was denied as against the interest of defendant Hattie Teague. Plaintiff appeals from the judgment. The following facts appear from the findings and proceedings: In 1883 William and Mary Teague were husband and wife; the mortgaged premises belonged to them as the property of the community; in that year Mrs. Teague duly filed a homestead on the premises; on August 14, 1889, William and Mary Teague executed to plaintiff’s assignor, the German Savings and Loan Society, their joint promissory note, payable one year after date, and also on that day executed their mortgage on the premises in question to secure the payment of said note; in February, 1894, William Teague died testate; thereafter defendant, Luther Teague, was appointed administrator of the estate of William with the will annexed, and thereafter—to wit, August 2, 1894—by an order duly given and made, the court set apart the premises as a homestead to Mary Teague, widow of deceased, and to Hattie Teague, their sole minor child; within four months after the appointment of said administrator, plaintiff’s assignor duly filed its claim against said estate upon and in respect of said promissory note and mortgage, and on August 2, 1894, the claim was allowed and approved by said administrator, and on September 3, 1894, was duly allowed by the judge; on January 10, 1897, the said Mary conveyed to the

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said Hattie the said mortgaged premises, and the latter ever since has been, and now is, the exclusive and sole owner and in possession of said lands and premises, but whatever interest said Hattie has she derived under and by virtue of said deed of said Mary, her mother, and widow of deceased. The complaint was filed December 2, 1897. The answer pleaded the statute of limitations as to Mary and Hattie Teague and title in the latter under the deed of Mary Teague.

As conclusions of law, the court found that the action was barred as to Hattie Teague by the provision of section 337 of the Code of Civil Procedure, and, as to her, plaintiff is not entitled to judgment, but is entitled to a decree of foreclosure as against the administrator as such, the judgment in no wise to prejudice the title of Hattie Teague, which she asserts adversely to the title of said Luther Teague, administrator of said estate. As to the estate, it is conceded by respondents that the statute of limitations ceased to run, under the provision of section 1569 of the Code of Civil Procedure, which reads: “ ... No claim against any estate, which has been presented and allowed, is affected by the statute of limitations, pending the proceedings for the settlement of the estate ...” The contention of appellant is, “that the presentation of a claim against a deceased man’s estate operates to place the obligation of the deceased outside of the pale of limitation for all purposes, ’ ’—in other words, that the statute did not run as to Mary Teague, the joint maker of the note and mortgage, but was suspended as to her by virtue of the section above quoted. It is further claimed that the mortgage is but “an incident to the note, and that there is but one action upon a note and mortgage, which must be as provided in section 726 of the Code of Civil Procedure. And the rule of the codes as to limitation for the recovery of debts secured by mortgage is, that the mortgage can be extinguished by lapse of time within which an action may be brought on the note, and in no other way. There is not, therefore, as heretofore, one statute of limitation on the note and another on the mortgage.” Suppose William had not died, and it had become necessary to foreclose the mortgage. Without doubt, if Mary had not been made a party before the statute had run, her interest in the premises would have been unaffected by a foreclosure against William alone. The wife acquires an