Gleason v. Hawkins

• Decision Date: 07 August 1903
• Citation: 32 Wash. 464,73 P. 533
• Parties: GLEASON v. HAWKINS et al.
• Court: Washington Supreme Court

73 P. 533

32 Wash. 464

GLEASON v. HAWKINS et al.

Supreme Court of Washington

August 7, 1903

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by James P. Gleason against J. E. Hawkins, administrator, and others. From a judgment in favor of defendants, plaintiff appeals. Reversed as to defendant Hawkins.

Roberts & Leehey, for appellant.

John F Dore and Kenneth Mackintosh, for respondents.

FULLERTON, C.J.

The appellant, plaintiff below, brought this action to foreclose a mortgage upon certain real property situated in King county, Wash. The action was commenced January 23, 1903. Demurrers to the complaint were interposed by the several defendants and sustained by the court, whereupon the appellant declined to plead further, and a judgment of dismissal of the action was entered, from which this appeal is taken.

In his complaint the appellant alleged in substance that on March 5 1881, at Portland, Or., one Albert Carr made and delivered to Mary H. Carr his promissory note for $60, due six months from date, and secured the same by a mortgage upon the real property above mentioned; that the mortgagor died at Portland, Or., within three years from the time of the maturity of the note, and no administration of his estate in that state was ever had; that no administration on his estate was had in this state until December 5, 1902, when the respondent Hawkins was appointed such administrator. It was further alleged that no part of the principal or interest due upon the note had ever been paid; that the note and mortgage were duly assigned to the plaintiff; that the same, together with the mortgage, was presented to the administrator as a claim against the estate of Albert Carr deceased, and by the administrator rejected. The eighth paragraph of the complaint is as follows: 'That the defendants herein named, Charles D. Knight, Cassen Dana Knight, Annie M. Brown, Charles D. Knight, as administrator of the estate of John A. Stafford, deceased, and Annie M Brown and A. L. Brown, as executrix and executor of the estate of Amos Brown, deceased, Mrs. F. J. Anderson and John Doe Anderson, her husband, have or claim to have some interest or claims upon said premises or some part thereof, which interest or claims, however, if any exist, are wholly subsequent in date and inferior to plaintiff's mortgage, and subject to the lien thereof.' The prayer is that the appellant have judgment against the estate of Albert Carr, and against the respondent J. E. Hawkins as administrator thereof, for the amount due on the note, that the mortgage be foreclosed and the property therein described be sold to satisfy the amount found to be so due, and that the claims or interests of the other defendants in the property be adjudged inferior to the lien of the mortgage. The demurrers were sustained on the ground that the action was barred by the statute of limitations, and the correctness of this ruling is the principal question presented in the argument here.

By a reference to the dates above given it will be noticed that over 20 years had elapsed between the maturity of the note of the time any proceeding was commenced looking to its enforcement. It is the contention of the respondents that the right to enforce it after this lapse of time is barred both by the general statute of limitations, which requires that an action upon a contract in writing, or liability expressed or implied arising out of a written agreement, be commenced within six years after the cause of action accrued, and by the special statute of 1895, which provides that no real estate of a deceased person shall be liable for his debts unless letters testamentary or of administration be granted within six years from date of the death of such decedent. Ballinger's Ann. Codes & St. §§ 4798, 4642. On the other hand, the appellant claims that his right of action is saved by virtue of the provisions of section 4810 of the Code ( Id.) which provides 'If a person against whom an action may...