Hibernia Savings & Loan Society v. Wackenreuder

Estates of Deceased Persons—Foreclosure of Mortgage — Action pending at Death of Decedent—Presentation of Claims—Waiver. — Section 1502 of the Code of Civil Procedure, which provides that if an action is pending against a decedent at the time of his death the plaintiff in order to recover must present his claim against the estate, must be construed in connection with section 1500 of the same code, and as referring only to actions upon such claims as are required to he presented for allowance under the provisions of the code, and as not applying to an action for the foreclosure of a mortgage upon other than homestead premises, though commenced prior to the death of the mortgagor, and pending and undetermined át his death; but such action may he continued against the executors of the deceased mortgagor without presentation of the claim to them for allowance, if the plaintiff expressly waives all recourse against any other property of the decedent.

Id. — Construction of Code—Remedial Statutes.—Although the language of section 1509 of the Code of Civil Procedure, which permits the holder of a mortgage or lien to maintain an action thereon without presentation of the claim to the executor or administrator of an estate, if construed literally, would only apply to an action commenced after the death of the mortgagor, yet when construed like all other remedial statutes, it should not be confined to cases falling within its exact letter, but should be given effect according to its spirit and reason, and when so construed applies to an action pending at the time of the mortgagor’s death.

Id—Waived of Beooubse—Braved of Comflaint.—Where a complaint in an action to foreclose a mortgage against property of a deceased mortgagor expressly waives all recourse against any other property of the estate, the fact that the prayer for relief asks for “the amount due upon the said note and mortgage,” and for costs “and counsel fees,” and “ that a receiver be appointed to take charge of the real estate until the same be sold, and collect the rents and hold the net income therefrom, to be applied to the payment of any deficiency which may remain due to plaintiff after said sale,” does not destroy the effect of the express waiver.

Id.—Substitution of Executors — Supplemental Complaint — Continuation of Action—Statute of Limitations.—The filing of a supplemental complaint in an action to foreclose a mortgage, which contains in addition to the matters stated in the original complaint allegations of the death of the mortgagor and the appointment of his executors, who were named as defendants therein, and that the other persons who were named as defendants therein claimed an interest in the property mortgaged, and which also contains an express waiver of recourse against any other property of the decedent, is a continuation of the original action, and not the commencement of a new action, and where the original action was commenced within the time limited by section 337 of the Code of Civil Procedure the cause of action stated in the supplemental complaint is not barred by the provisions of that section, though the time therein specified had expired before the filing of the supplemental complaint.