Anglo-Nevada Assurance Corp. v. Nadeau

Vanclief, C. — Action to foreclose a mortgage executed by decedent on the tenth day of November, 1886, to secure payment of a promissory note for the sum of one hundred and fifty thousand dollars and interest, dated November 6, 1886, payable “on or before September 6, 1889.” Nadeau died January 15, 1887. His will was admitted to probate and his executors appointed April 18, 1887. Pursuant to an order of the probate court, notice to creditors was published on April 25, 1887, and the ten months within which creditors were required to present their claims expired February 25, 1888, about eighteen months before the maturity of the note. This action was commenced March 29, 1890, nearly six months after the maturity of the note. Neither the note nor the mortgage was ever presented to the executors for allowance; but in the complaint, all recourse against any other property of the estate than the mortgaged property is expressly waived. Judgment of foreclosure was rendered' in the usual form, except, that there was no judgment for a deficiency, nor for counsel fees.

This appeal is from the judgment upon the judgment' roll, including a bill of exceptions, showing that it was stipulated at the trial that the facts stated in the answer) [395]of the defendants (the substance of which is included in the above statement) are true. There was also a demurrer to the complaint on the ground that it does not state a cause of action, and on the further ground that “ it appears from said complaint that the plaintiff's alleged cause of action is barred by the provisions of section 1493 of the Code of Civil Procedure.”

Counsel for appellants contend that plaintiff’s entire claim arising upon the note and mortgage was barred by sections 1493 and 1500 of the Code of Civil Procedure, because it was not presented to the executors for allowance within ten months from the publication of notice to creditors; and that it does not come within the exception contained in section 1500 (viz., “ An action may be brought by any holder of a mortgage or lien to enforce the same against the property of the estate subject thereto, where all recourse against any other property of the estate is expressly waived in the complaint”), because when the action was commenced plaintiff had no right to enforce the mortgage against any property of the estate, and therefore could not have “ expressly waived in the complaint” a right that it did not then have. No authority is cited for this, except a legal definition of the verb “to waive”; from which counsel deduce the proposition that nothing else than an existing right can be waived. But this deduction is not warranted by the decisions from which the definition relied upon was extracted, nor by authority of lexicographers. The verb “to waive,” as well as the noun “waiver,” is properly used in different senses. Webster defines the verb thus: —