McMillan v. Hayward

California Supreme Court Apr 27, 1892 No. No. 13073Published

Before: Temple

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Holding. The court held that the statute of limitations for a mortgage foreclosure action was not tolled by the marriage of the executrix, as her authority did not cease ipso facto upon marriage, and the plaintiff failed to commence the action within the statutory period.

Issues

Whether the statute of limitations for a mortgage foreclosure action is tolled by the marriage of an executrix.
Whether the authority of an executrix ceases ipso facto upon her marriage.
Whether the failure to publish notice to creditors affects the general statute of limitations.

Disposition. reversed and new trial ordered

Quotations verified verbatim against the opinion

“The defense is the bar of the statute of limitations (Code Civ. Proc., sec. 337), which we think is fully sustained by the facts as above recited.”

“But we think the respondent mistaken in supposing that the authority of the executrix ceased upon her marriage.”

“The powers of the executrix, therefore, continued until her removal, more than eleven years after her appointment, and respondent had his full time within which to commence his action.”

Synopsis

Foreclosure of Mortgage — Estates of Decedents — Statute of Limitations— Death after Maturity of Note. — An action to foreclose a mortgage, commenced neither within four years after the maturity of the note, nor within one year after the issuance of letters of administration upon the estate of the deceased mortgagor, who died after the maturity of the note, and after the statute of limitations had commenced to run, is barred by section 337 of the Code of Civil Procedure, and the right of action is not saved by section 353 of that code.

Id. — Extension of Limitation — Object of Statute Allowing One Year after Letters. •— The purpose of section 353 of the Code of Civil Procedure is to secure to a party who has a cause of action against a decedent one year after the appointment of a legal representative within which to bring his action, though the general limitation may have expired, and not to shorten the time limited by the general statute; and it does not have, and was not intended to have, any effect whatever upon his rights, where the general statute has not barred the right of action, and where it is not necessary to extend the time in order to give him his year, but in such case he is simply left to the general statute.

Id.—Waiver op Recourse upon Estate—• Notice to Creditors.— Where, upon the foreclosure of a mortgage, it appears that no claim was presented against the estate of the deceased mortgagor, and in the complaint all recourse against any other property of the estate is expressly waived, the fact that notice to creditors was not published by the executrix cannot alter the rights of the mortgagee, nor affect the general statute of limitations.

Executors and Administrators — Authority op Executrix after Marriage. — The authority of an executrix does not cease ipso facto upon her marriage, but she merely becomes incompetent, and liable to removal, and her powers as executrix continue until her removal.

Temple, C. Defendants appeal from the judgment against them within sixty days; and the point made here is, that the finding to the effect that the cause of action was not barred by the statute of limitations is not sustained by the evidence, and is contrary to the other findings of fact.

It appears that, May 8, 1873, Frank Scherf executed a note secured by mortgage, which became due one year from the date thereof; that the mortgagor died testate, November 15, 1875, and January 11, 1876, his widow was appointed executrix and duly qualified. March 5, 1878, she married again, and her letters testamentary were revoked July 15, 1887. No notice to creditors was published by her.

Hayward was appointed administrator with the will annexed, September 6, 1887, and this suit was commenced September 14, 1887, against the administrator and the minor children of Scherf, his devisees, to foreclose the mortgage. No claim was ever presented against the estate for the amount due on the note and mortgage, and in the complaint all recourse against other property of the estate is expressly waived.

The defense is the bar of the statute of limitations (Code Civ. Proc., sec. 337), which we think is fully sustained by the facts as above recited.

Respondent, however, claims that his rights are saved by section 353 of the Code of Civil Procedure, which provides: “If a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, and the cause of action [360]survive, an action may be commenced against his representatives, after the expiration of that time, and within one year after the issuing of letters testamentary or of administration.”

Scherf died after the maturity of the note. The statute had therefore commenced to run, and would continue to run unless the case is brought within some express exceptions of the statute, and death is not made such, further than that the suitor may in such case commence his action within one year after letters are issued. This action was commenced neither within four years after the maturity of the note, nor within one year after letters were issued.

Respondent contends that inasmuch as the executrix married about eighteen months after her appointment, but before the bar of the statute would have attached had Scherf lived, her authority ceased ipso facto, and suit could not have been brought to foreclose the mortgage until her successor was appointed; therefore, since this statute was intended to extend and not to shorten the time, he had one year after the appointment of Hayward within which to begin his action.

McMillan v. Hayward

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