Bryan v. Kales

• Decision Date: 03 March 1890
• Citation: 10 S.Ct. 435,33 L.Ed. 829,134 U.S. 126
• Parties: BRYAN v. KALES et al. 1
• Court: U.S. Supreme Court

10 S.Ct. 435

134 U.S. 126

33 L.Ed. 829

BRYAN v. KALES et al.¹

March 3, 1890.

This suit was brought by the appellant on the 18th of July, 1887, in the district court of the second judicial district of Arizona, and was there heard upon demurrer to the complaint. The demurrer was sustained, and, the plaintiff refusing to amend, the suit was dismissed. That judgment having been affirmed by the supreme court of the territory, the only question is whether the facts alleged in the complaint— assuming, as we must, that they are true—set forth a cause of action entitling the plaintiff to relief.

The case made by the complaint is as follows: Jonathan M. Bryan was the owner at the time of his death, on the 29th of August, 1883, (1) of the S. E. 1/4 section No. 33, in township 2 N. of range 3 E., of the district of lands subject to sale at the land-office of the United States at Tucson, Ariz., and of the Gila and Salt River meridian; (2) the N. E. 1/4 of section 5, in township 1 N., of range 3 E., of the same district and meridian, and lying one-half mile north of the city of Phoenix, in Maricopa county, Ariz., such piece of land being once called the 'Shortle Ranch,' but now commonly known as 'Central Place;' (3) The S. E. 1/4 of section 9, in to wnship 1 N., of range 3 E., of the same meridian and district; and (4) all of block 98 in the city of Phoenix, according to a map or plat of that city made by William A. Hancock, surveyor of the town-site of such city, and on file in the office of the county recorder of Maricopa county.

On or about the 24th of September, 1883, letters of administration upon his estate were issued by the probate court of Maricopa county to M. W. Kales, who immediately qualified and entered upon his duties as administrator, continuing to be and to act as such until December 6, 1884, when he was discharged. Since that date there has been no administrator of the decedent's estate.

While Bryan was the owner and in possession of the above-described real estate, he executed to Kales four promissory notes for the amounts, respectively, of $1,200, $2,500, $1,500, and $500, dated December 11, 1882, February 23, 1883, February 26, 1883, and March 14, 1883, and payable, respectively, December 11, 1883, February 23, 1884, October 26, 1883, and September 14, 1883; each note calling for interest, payable every three months, at the rate of 1 1/2 per cent. per month, and, if not so paid, the note to become due and payable. At the date of each note, he executed, acknowledged, and delivered to Kales a mortgage upon real estate to secure its payment,—upon the first of the above-described pieces of real estate to secure the note for $1,200; upon the second, to secure the note for $2,500; upon the third, to secure the note for $1,500; and upon the fourth, to secure the note for $500. These mortgages were all duly recorded.

Before the notes fell due, and before they were presented for allowance against the estate of Bryan in the probate court having jurisdiction thereof, and without application to any court for an order to pay the notes, or any of them, or to sell any property of the estate to pay them, and 'while holding in his hands as administrator sufficient money to pay all the principal and interest which might become due on said notes, or any of them,' Kales, on the 28th of September, 1883, instituted, in the district court of the second judicial district of Arizona, in and for Maricopa county, in his individual name, an action against himself as administrator. He declared in that action upon the notes and mortgages, and prayed judgment against himself as administrator for the sum of $5,700, with interest on $1,200 of that sum from the 11th day of June, 1883; on $2,500, from the 23d day of May, 1883; on $1,500, from the 26th day of May, 1883; and on $500 from June 14, 1883,—the interest on each sum to be at the rate of 1 1/2 per cent. per month, with a like rate of interest upon the principal sum named in any judgment or decree that may be obtained from the date thereof until the same shall be fully paid and satisfied; and for 10 per cent. for attorneys' fees upon $4,000 of the principal sum, and 5 per cent. for attorneys' fees upon $2,500 of the principal sum; and for costs of suit.

He also prayed that the usual decree be made for the sale of the premises by the sheriff, according to law and the practice of the court; that the proceeds of sale be applied in payment of the amount due the plaintiff; that the defendant, and all persons claiming under him or his decedent subsequent to he execution of the mortgages upon the premises, either as purchasers, incumbrancers, or otherwise, be barred and foreclosed of all right, claim, or equity of redemption in the premises, and every part thereof; and that the plaintiff have judgment against the defendant, as administator of the estate of J. M. Bryan, deceased, for any deficiency remaining after applying the proceeds of the sale of the premises properly applicable to the satisfaction of the judgment, and that such deficiency be made a claim against the estate of the said J. M. Bryan, deceased, to Be paid as other claims said estate.

He further prayed that the plaintiff, or any other party to the suit, might become a purchaser at the sale; that the sheriff execute a deed to the purchaser; that the latter be let into the possession of the premises on production of the sheriff's deed therefor; and that the plaintiff have such other or further relief in the premises as to the court seemed meet and equitable.

A summons was sued out by M. W. Kales as an individual against himself as administrator, requiring the latter to appear and answer the complaint. It was personally served on the day it was issued, and, on the succeeding day, October 6, 1883, in his capacity as administrator, he made the following answer to the complaint filed by himself in his individual capacity:

'The defendant M. W. Kales, administrator of the estate of J. M. Bryan, deceased, answering the complaint on file in this action, admits each and every material a llegation in the said complan t, and consents that judgment and decree be entered in accordance with the prayer thereof.'

In other words, M. W. Kales consented that he might as an individual take judgment against himself as administrator.

On the 16th of October, 1883, the court, D. H. PINNEY being the judge thereof, rendered a decree of foreclosure and sale, finding, upon the complaint, answer, and proofs heard, that there was due to the plaintiff, M. W. Kales, from the defendant, M. W. Kales, administrator, the sums, with interest, specified in the several mortgages, with the attorney's fee provided for in the mortgages and claimed in the complaint, and directing the proceeds of the sale of each parcel to be applied to the debt secured by the mortgage on that parcel.

The decree further provided:

'That the defendant M. W. Kales, as administrator as aforesaid, and all persons claiming or to claim from or under him, or from or under the said J. M. Bryan, deceased, and all persons having liens subsequent to said mortgages, by judgment, decree, or otherwise, upon the lands described in said mortgages, or either of them, and they or their personal representatives, and all persons having any lien or claim by or under such subsequent judgment or decree, and their personal representatives, and all persons claiming under them, be forever barred and foreclosed of and from all equity of redemption and claim in, of, and to said mortgaged premises, and every part and parcel thereof, from and after the delivery of said sheriff's deed, * * *

'And it is further adjudged and decreed that, if the moneys arising from said sale of any of the separate parcels of said lands described in either of the respective mortgages shall be insufficient to pay the amount so found due to the plaintiff, as above stated, upon each of the respective mortgages, with interests and costs and expenses of sale as aforesaid, the sheriff specify the amount of such deficiency and balance due the plaintiff upon each of the respective mortgages separately in his return of sale, and that on the coming in and filing of said returns of deficiency the same shall become a claim against the estate of J. M. Bryan, deceased, to be paid as other...