Hibernia Savings & Loan Society v. Conlin

Thornton, J. Action to foreclose a mortgage executed by Catherine M. Conlin on her separate real property to the plaintiff to secure the note of the defendant, John J. Conlin, her husband. The note above mentioned was for $500, with interest at the rate of nine per cent per annum, bore date September 13, 1873, and was payable in twenty-four equal instalments of $22.84 each, the first instalment to be paid one month after date, and another instalment each month thereafter, until all were paid. The above given terms of the note in the view taken of this cause herein are alone material.

Catherine M. Conlin died testate on the 28th of ¡November, 1873, and on the 8th day of January, 1874, M. C. Smith was duly appointed executor thereof. On the 6th of August, 1875, plaintiff presented its claim, duly verified, for the amount due upon said note and mortgage, to said executor, and which was by him allowed.

It is also found that the claim was, on the 7th day of August, 1875, presented to the judge of the Probate Court, by him approved, and thereafter filed with the clerk of the Probate Court.

The above facts are found by the court.

The material question in the case arises on the defense of the Statute of Limitations.

We are of opinion that no presentation of the claim arising on the mortgage made by Mrs. Conlin was required by law. We [180]find nothing in the statute on the subject of the presentation of claims against the estates of deceased persons, which calls for any such presentation. Only such claims are required to be presented as when allowed will rank among the acknowledged debts of the estate, to be paid in due course of administration. (Code Civ. Proc. § 1497.) Mrs. Conlin owed no debt to the plaintiff. She only conveyed her property in mortgage to secure the payment of the debt of another. No action to recover any indebtedness could have. been maintained against her in her lifetime, should any interest due on the note of her husband have fallen due and remained unpaid. Section 1500 of the Code of Civil Procedure does not apply to this case, for the reason that there could be no recourse under any circumstances against any other property of the estate of Mrs. Conlin than that mentioned in the complaint. This is true of every form in which this section has been enacted, since the Codes went into effect.

It was manifestly the intention of the section last referred to as it was first adopted and as it was re-enacted in 1876, to give the holder of the mortgage where he held a claim against the estate secured by it which when allowed would rank with the acknowledged debts of the estate, an election to present the claim for allowance, have it allowed and proceed to foreclose for the whole amount due on the claim, including any deficiency arising on a sale of the mortgaged premises, or to present no claim and sue on the mortgage alone, and obtain whatever might be realized on a sale of the mortgaged premises under the decree of foreclosure.