Clayton v. Dinwoodey

• Decision Date: 20 January 1908
• Docket Number: 1877
• Court: Utah Supreme Court
• Parties: CLAYTON v. DINWOODEY et al

93 P. 723

33 Utah 251

CLAYTON v. DINWOODEY et al

No. 1877

Supreme Court of Utah

January 20, 1908

APPEAL from District Court, Third District; M. L. Ritchie, Judge.

Action by W. Clayton against Henry M. Dinwoodey and other executors of a will. From a judgment for plaintiff, defendants appeal.

AFFIRMED, WITH A MODIFICATION IN CONFORMITY WITH THE STATUTE.

Ray Van Cott for appellants.

Young &amp Snow for respondent.

STRAUP J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

On the 20th day of July, 1905, Henry Dinwoodey, in consideration of the sum of $ 42,500, by warranty deed sold and conveyed to the plaintiff certain realty, free from all incumbrances, situate in Salt Lake City. By statute it is provided that every tax upon real property is a lien against the property assessed, which attaches as of the first Monday in February of each year. On July 19, 21, 25, 28, and 31, 1905, the rates were fixed as provided by law, and the amount of taxes against the property ascertained to be $ 1,078.14. The taxes became delinquent November 15, 1905. Henry Dinwoodey died on October 1, 1905. The taxes had not been paid by him. On the 28th day of October his will was admitted to probate. Letters testamentary were issued to the appellants, who qualified and entered upon the discharge of their duties as executors. On the 28th day of October, 1905, the first publication of notice to creditors was made. The estate exceeded in value the sum of $ 10,000. Creditors were required to present their claims to the executors on or before September 10, 1906, the time fixed in the published notice. On the 3d day of January, 1906, the plaintiff paid the taxes to the county treasurer. On the 23d day of March, 1906, the defendants accepted service of summons issued in this action and a copy of a verified complaint, the original of which was filed in the district court by the plaintiff on the 31st day of March. The substance of the complaint is: That on the 20th day of July, 1905, the deceased, by warranty deed, conveyed to the plaintiff certain real estate, fully described, free from all incumbrances; that at the time of the making and delivery of the deed the property was not free from all incumbrances, but was subject to county, state, and school taxes, specifying the amount of each, which aggregated the sum of $ 1,078.14; that said taxes were at the time of the making and delivery of the deed due and remained unpaid, and were liens and incumbrances on the property; that the plaintiff was obliged to pay, and did pay on the 3d day of January, 1906, the sum of $ 1,078.14, in extinguishing the liens and incumbrances; that the deceased died on the 1st day of October, 1905, leaving a will, and that the defendants were appointed executors, and letters testamentary issued to them, etc. To the complaint was attached a copy of the deed and made a part thereof. The defendants were required to appear and plead to the complaint 20 days after the service of summons. On the 11th day of April they appeared and demurred to the complaint for want of facts. The hearing on the demurrer was set for the 21st day of April, at which time counsel for both parties appeared. The demurrer was submitted without argument, and overruled. The defendants were given five days in which to answer the complaint. In due time they answered, admitting the death of the decedent and their appointment as executors. Respecting the allegations of the execution of the deed, the taxes due and unpaid, and that they were liens and incumbrances on the property and had been paid by the plaintiff, they averred they had not sufficient knowledge or information, and on that ground denied them. The case was set for trial on the 24th day of October. On the 17th day of October the defendants filed an amended answer, in which it was alleged that the cause of action stated in the complaint was barred by sections 3851, 3852, 3853, and 3856, c. 9 tit. 74, of the Probate Code, Rev. St. 1898. The plaintiff's demurrer to the amended answer was sustained. Plaintiff applied for and was given leave to file an amended complaint, which was done on the 3d day of November, 1906. The amendment contained the following additional allegations: That the taxes became delinquent November 15, 1905, and, were due and should have been paid prior to that date out of the funds of the estate in the due course of administration, but that the defendants, notwithstanding the request of the plaintiff, refused to pay them. The defendant's demurrer to the amended complaint was overruled. They thereafter answered on the 26th day of December, and, in addition to their original answer, averred that notice had been published to creditors, the first publication appearing on the 28th day of October, 1905, and that creditors were required to present their claims on or before the 10th day of September, 1906; that the plaintiff failed to present any claim, and because thereof he was estopped from asserting his claim and his action was barred.

On the trial, evidence was given in support of the allegations of the complaint. There was no substantial conflict in the evidence respecting them. Proof was also made that notice to creditors was given by the defendants, as executors, and as alleged in their answer. The evidence further shows that the plaintiff did not present any claim prior to the commencement of the action. The court found the facts respecting the sale of the property by the deceased to the plaintiff, the execution and delivery of the warranty deed, the conveyance of the property free from all incumbrances, that the taxes were unpaid by the deceased, and that the plaintiff paid them, as alleged in the complaint. As conclusions of law the court held that the taxes were incumbrances on the property at the time of the execution and delivery of the deed; that they became delinquent on the 15th day of November, 1905, and "were due from and should have been paid prior to that date out of the funds of the estate of the said Henry Dinwoodey by the defendants, as executors as aforesaid, in due course of administration"; and that the plaintiff was entitled to judgment in the sum of $ 1,188.14, and costs taxed at $ 10. The judgment, however, is entered: "Adjudged and decreed that said plaintiff do have and recover of and from the said defendants the sum of $ 1,188.14, together with interest thereon at the rate of 8 per cent. per annum from the 16th day of April, 1907, until paid, together with $ 10, plaintiff's costs incurred in this action."

From this judgment the defendants have appealed. They assail the conclusions of law, the judgment, the rulings of the court overruling their demurrers to the plaintiff's complaints and sustaining plaintiff's demurrer to their amended answer. These alleged errors are all predicated on the theory that the plaintiff's claim required presentation to the executors as by statute in such case made and provided, and that the plaintiff failed to make such. On the other hand, it is argued by the plaintiff that his claim was not of such character as, under the statute, required presentation. The statute provides that the executor or administrator must publish notice to creditors, in which must be expressed the time within which claims may be presented. This was done. The time fixed was September 10, 1906. Section 3851, Rev. St. 1898, provides:

"All claims arising upon contracts, whether the same be due, not due, or contingent, must be presented within the time limited in the notice, and any claim not so presented is barred forever; provided, that when it is made to appear by the affidavit of the claimant, to the satisfaction of the court, or judge thereof, that the claimant had no notice as provided in this chapter, by reason of being out of the state, it may be presented at any time before a decree of distribution is entered; provided further, that nothing in this title contained shall be so construed as to prohibit the foreclosure of liens or mortgages as hereinafter provided."

By section 3852 it is further provided that every claim when presented to the executor or administrator must be supported by the affidavit of the claimant, or some one in his behalf, that the amount is justly due, no payments have been made thereon which are not credited, and that there are no offsets to the same to the knowledge of the affiant. If the claim be founded on a bond, bill, note, or any other instrument, a copy of such instrument must accompany the claim, and the original instrument must be exhibited, if demanded, unless it be lost, etc. Section 3853 provides that when a claim accompanied by the required affidavit is presented to the executor or administrator he must indorse thereon his allowance or rejection, with the date thereof. If he refuses or neglects to indorse such allowance or rejection for ten days after the claim has been presented to him, such refusal or neglect may, at the option of the claimant, be deemed equivalent to a rejection on the tenth day. It is further provided that when the claim is rejected the holder must bring suit in the proper court against the executor or administrator within three months after the date of its rejection. Section 3858 provides as follows:

"No holder of any claim against an estate shall maintain any action thereon unless the claim is first presented to the executor or administrator, except that an action may be brought without notice 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; but no counsel fees shall be recovered in such action unless such claim be so presented."

The following sections of the statute in...