Fullerton v. Bailey

• Decision Date: 21 June 1898
• Docket Number: 950
• Court: Utah Supreme Court
• Parties: WILLIAM FULLERTON, APPELLANT, v. LEDYARD M. BAILEY, ADMINISTRATOR, RESPONDENT

53 P. 1020

17 Utah 85

WILLIAM FULLERTON, APPELLANT, v. LEDYARD M. BAILEY, ADMINISTRATOR, RESPONDENT

No. 950

Supreme Court of Utah

June 21, 1898

Appeal from district court, Salt Lake county; Ogden Hiles, Judge.

Action by William Fullerton against Ledyard M. Bailey, administrator with the will annexed of the estate of James Boggs, deceased and others. A demurrer to the complaint was sustained, and plaintiff appeals.

Reversed and remanded.

H. M Orahood and Stephens & Smith, for appellant.

Varian & Varian, for respondent.

Two notes were given by the testator on September 30, 1890, one maturing September 30, 1891, and the other on September 30 1892.

He died November 18, 1893, and the statute of limitations as to both notes was in motion long before his death. Had he lived, his remedy would have been barred on September 30, 1895, as to one, and on September 30, 1896, as to the other. His death did not toll the statute. The authorities are uniform as to this. Rhodes v. Sweethurst, 4 M. and W. 42; affirmed in Exch. Chamber, 6 M. & W. 351; Treake v. Cranefeldt, 3 Mylne & Craig, 499; Scott v. Jones, 4 Clark & Finn, 381; McCullough v. Speed, 3 McCord 455; Abbott v. McElroy, 10 S. and M. Miss. 100; McKinzie v. Hill, 51 Mo. 303; Granger Ad. v. Granger, 6 Oh 42; Wicks v. Martindale, 1 Harper 135; Beauchamp v. Mudd, 2 Bibb. 537; Wood Lim. 1 Ed. pp. 8-10 and notes; Angell Lim. 6 Ed. sec. 56, p. 51.

The general rule is that when a disability against the prosecution of a right of action is relied on to interrupt the running of the statute it must exist at the time the right of action accrues. Bunce v. Wolcott, 2 Conn. 27; Demarest v. Wyncoop, 3 John. Chy. 129; Jackson v. Wheat, 18 John 46; Jackson v. Johnson, 5 (Cowan) 93; Hogan v. Kutz, 94 U.S. 773; Mercer's Lessee v. Selden, 1 How. 53.

There is an exception in this country, applied to cases where the civil war intervened, which needs no consideration here. Semmes v. Co., 13 Wall 158; Hanger v. Abbotts, 6 Wall. 532.

It is incumbent upon a party who relies upon an exception or saving clause in a statute, to relieve him from the operation of the general rule of the statute to specially plead the facts which bring his case within the saving or exception. This is particularly true in a case like this, where the complaint shows the suit to be barred by the statute. Bass v. Berry, 51 Cal. 264; Smith v. Richmond, 19 Cal. 481; Pleasant v. Samuels, 114 Cal. 39; Bloodgood v. Bruen, 8 N.Y. 367; Bliss Code Pld'g, secs. 202-203-205; Stephen Pld'g, p. 443.

The rule as to sureties which gives no right of subrogation, when the debt is barred, or cannot be enforced against the principal, must also apply here. Sheldon Subrogation, sec. 110; Brandt Suretyship, sec. 124; Randolph v. Randolph, 3 Rand. 490; Hatchell v. Pogram, 21 La. Ann. 722.

The bar by the special statutes against executors is absolute. Williams, supra, 2023 n. t.; Atwood v. Bank, 2 R. I. 191; Walker v. Cheever, 39 N.H. 420; Thompson v. Brown, 16 Mass. 172; Pratt v. Northam, 5 Mass. 111.

The administrator takes possession of the entire estate, including the realty, and he is a trustee for heirs and devises as well as all creditors. Under the statute he is bound to set up the lapse of time. If he should allow a claim which was barred, the allowance would be void. Moore v. Hardison, 10 Tex. 467; Estes v. Browning, Tex. 60 Am. Dec. 240; Vrooman v. Li. Po Tai, 113 Cal. 306.

We do not question the doctrine of this court as announced in George v. Butler. The cases are not alike. It does not appear here that plaintiff intended or believed he was to be subrogated. Inferentially it appears that he relied all the time on the distribution to be made to his grantor, and thus expected to get the title. Etna Co. v. Middleport, 124 U.S. 534.

MINER, J. ZANE, C. J., and BARTCH, J., concurring.

OPINION

MINER, J.:

The complaint in this case was filed October 21, 1897, asking that the plaintiff be subrogated to the rights of Ann North Leaker, under a mortgage which appellant paid to her in order to prevent a foreclosure thereof. The mortgage, at the time of this payment, was a proper claim upon the land and against the estate of the deceased. The land covered by the mortgage had, previous to the settlement of the estate, been conveyed to the appellant by the sole legatee under the will, under the representations that there were no debts except the mortgage in question, and that the estate was solvent. After appellant had paid the mortgage, a claim was allowed in favor of the brother of the deceased, which absorbed the entire estate, and left the appellant without anything to reimburse him for money paid to satisfy the mortgage. A demurrer was interposed to the complaint by the administrator, and sustained. The complaint was dismissed, and a judgment rendered in favor of the respondents, from which decree this appeal is taken.

1. In the argument of this case counsel have discussed the question of the application of the statute of limitations as a bar to recovery. No plea of the statute of limitations was set up in the answer or relied upon by any plea or demurrer thereto. Under section 4121, Comp. Laws Utah 1888, when a claim is presented against an estate for allowance in a case like this, the time within which claims must be presented is limited to 10 months after the first publication of notice to creditors. Under section 4123, Comp. Laws Utah 1888, unless such claim be presented, it is barred, unless it appear that the claimant had no notice, or was out of the state, etc. Section 4130, Comp. Laws Utah 1888, provides that "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 in the following case: An action may be brought by any holder of a mortgage or lien to enforce the same against the property of the estate subject thereto." Section 4129, Comp. Laws Utah 1888, provides that "no claim must be allowed by the executor or administrator, or the judge of the probate court, which is barred by the statute of limitations. When a claim is presented to the judge for his allowance, he may, in his discretion, examine the claimant and others on oath, and hear any legal evidence touching the validity of the claim."

These provisions of the statute have reference to the presentation and allowance of claims against the estate by and through the agency of the administrator and the probate court, and, under section 4130, the holder of a mortgage or lien may have recourse against the property subject thereto, without such presentation or allowance of the claim. Under section 4129, no claim can be allowed by the executor, administrator, or judge which is barred by the statute.

The notes given by the testator were dated September 30, 1890. One, for $ 2,500, was due one year after date, and the other, for $ 2,500, was due two years after date. The testator was out of the state one year. The appellant paid these notes, and the mortgage secured by them, August 1, 1895. The testator died November 18, 1893. Mr. Bailey was appointed administrator with the will annexed, February 1, 1894, and 10 months was allowed for the presentation of claims against the estate, computed from February 22, 1894, so that the time for the presentation of claims, without special application, expired December 22, 1894. The claim in question was not presented to the administrator or court for allowance until October 12, 1897, and this suit was brought October 21, 1897, so that, under these special provisions of the statute, the claim was barred, as a proper claim for allowance against the estate, before it was presented for allowance, unless the failure of the administrator to plead the statute of limitations removed the bar and rendered the estate liable.

We are of the opinion that, under section 4129, the claim was barred as a claim for allowance by the administrator against the estate, and that it was the duty of the administrator to plead the statute against the allowance of such claim, and that his failure to do so would not remove the statutory bar. The claim, being barred by the statute for allowance against the estate, must be considered no debt for allowance under that statute. Under such circumstances there was no legal obligation to allow it, but, on the contrary, the legal duty to set up the bar of the statute rested upon the administrator, under the provisions of section 4129. Upon his failure to plead it, the statute (section 4129) enacted for that special purpose created the bar. 3 Williams, Ex'rs (7th Am. Ed.) top p. 574; Butler v. Johnson, 111 N.Y. 204, 18 N.E. 643; Vrooman v. Li Po Tai, 113 Cal. 302, 45 P. 470; Smith v. Pattie, 81 Va. 654; Balz v. Underhill, (Sup.) 19 Misc. 215, 44 N.Y.S. 419; Hoskins v. Sheddon, 70 Ga. 528.

2. Under section 4130, above referred to, it was not necessary for the claimant for subrogation under the mortgage to present his claim for allowance to the probate court. He had a right to bring this action to be subrogated to the rights of Ann North Leaker, under her mortgage, by virtue of his alleged equitable claim and lien, without invoking the aid of the administrator or the probate court. Under section 3143, Comp. Laws Utah 1888, actions upon a contract, obligation, or liability, founded upon an instrument in writing, must be commenced within four years. Under this section, if the defendant desired to interpose the statutory bar, it was his duty to plead the statute. This he did not do.

In Spanish Fork City v. Hopper, 7 Utah 235, 26 P. 293, this court held that, "in order to plead the statute, the answer should have stated and pleaded the section of the Code of Civil Procedure relied upon, or should have stated the facts...