Fish v. De Laray

• Decision Date: 04 March 1896
• Citation: 8 S.D. 320,66 N.W. 465
• Parties: FISH et al. v. DE LARAY et al.
• Court: South Dakota Supreme Court

8 S.D. 320

66 N.W. 465

FISH et al.

v.DE LARAY et al.

Supreme Court of South Dakota.

March 4, 1896.

Syllabus by the Court.

A debt secured by a mechanic's lien made of record is not a claim that must, under section 5790 of the Compiled Laws, be presented to an administrator for allowance or rejection.

Appeal from circuit court, Lawrence county; A. J. Plowman, Judge.

Action by James M. Fish and John Hunter, partners under the name of Fish & Hunter, against Harry De Laray and others. Judgment for defendants, and plaintiffs appeal. Reversed.Frawley & Laffey, for appellants.

FULLER, J.

This is an action to foreclose a mechanic's lien for material furnished for the erection of a dwelling house upon the real property of a decedent. The contract was made with the owner, and the lien was perpetuated, and made effectual for all purposes, by filing the same, as required by law, about one year prior to the death of said owner. While all necessary and proper persons, including the administrator, heirs at law, guardian, and a mortgagee, were made parties defendant, no resistance to the foreclosure proceeding was offered by any of them, and no brief is filed herein by respondents. For the sole reason that it did not appear that the claim upon which the lien was founded had been presented to the administrator for allowance or rejection, and upon full and specific findings of fact otherwise favorable to plaintiffs, the court found, as a matter of law, that plaintiffs were not entitled to the relief prayed for; and from a judgment dismissing the action, accordingly entered, plaintiffs appeal. The primary object of the statutory provision requiring a claim against the estate of a deceased person to be presented within a specified time is to apprise the administrator and the court of the existence thereof, so that a proper and timely arrangement may be made for its payment in full, or a pro rata portion thereof, in the due course of administration. Like the lien of a mortgage, which survives the obligor, and is enforceable by a foreclosure and sale of the incumbered property, a debt evidenced by a verified, itemized statement of the amount due, which is secured by a mechanic's lien made of record, so that the world is charged with notice of its existence and amount, ought not to be barred and lost, so far as it affects the property subject thereto, by a failure to present the claim thus secured. Without such presentation, the administrator is presumed...