Fremd v. Hogg

• Decision Date: 24 November 1914
• Parties: FREMD v. HOGG et al.
• Court: Florida Supreme Court

67 So. 75

68 Fla. 331

FREMD v. HOGG et al.

Florida Supreme Court

November 24, 1914

Appeal from Circuit Court, Palm Beach County; J. W. Perkins, Judge.

Bill by A. Y. W. Hogg and another, as executors and administrator etc., of Annie K. Hogg, deceased, against William Fremd, as administrator of the estate of David Thomas, deceased. From an order overruling plea of nonclaim, defendant appeals. Reversed.

Additional Syllabus by Editorial Staff

Syllabus by the Court

SYLLABUS

A mortgage by an intestate not presented to the administrator within the statute of nonclaim is barred in the absence of payment of interest or other act of estoppel.

COUNSEL H. L. Bussey, of West Palm Beach, for appellant.

F. L Hemmings, of Ft. Pierce, for appellees.

OPINION

COCKRELL J.

A bill to enforce a mortgage lien was filed in March, 1914, by the personal representative of Annie K. Hogg, deceased, against the heirs and administrator of the estate of David Thomas deceased. The heirs did not defend, and decree pro confesso was entered against them. The administrator pleaded the statute of nonclaim, and appealed from an order overruling this plea.

It is admitted that the plea should have been sustained if the decision by this court in Bush v. Adams, 22 Fla. 177, is still the law of this state. We there ruled that:

'When by law lands are assets of an estate, and the mortgagor dies without having disposed of the parcel mortgaged, and it is a part of his estate, the statute of nonclaim, as usually framed, is as applicable in its requirements to the preservation of the lien of the mortgage against the parcel of land as it is to the preservation of the claim against the general assets in case the mortgage security should prove inadequate. * * * The statute applies to all 'debts and demands of whatever nature against the estate of any testator or intestate,' and the notice is to all 'creditors,' etc. The fact that a particular portion of the land of the decedent's estate has been pledged by him in his life to the payment of a debt or demand has not been made an exception upon the requirements of the statute as to presentation. * * * If it applies to judgments which are a lien upon all the real estate, as it does [citing authorities], we cannot see why it should not hold as to a lien upon part of the land. The policy of the Legislature requires action upon the part of the creditor to preserve his claim.'

It may be observed that by statute a mortgage is, both at law and in equity, a mere lien, and passes neither title nor possession.

It is argued, however, that this decision is at variance with the majority of holdings of the courts of the various states, and that there has been such a change in the statutes since that decision as to require or at least justify us in going over with that majority.

Prior to the adoption of the Revised Statutes of 1892, it was the law of this state that the administrator became, as such entitled to the possession of the real estate of the...