Hill v. Townley

• Decision Date: 02 January 1891
• Citation: 45 Minn. 167
• Court: Minnesota Supreme Court
• Parties: ALFRED J. HILL <I>vs.</I> JOHN L. TOWNLEY Administrator, and others.

Page 167

45 Minn. 167

ALFRED J. HILL vs. JOHN L. TOWNLEY Administrator, and others.

Supreme Court of Minnesota.

January 2, 1891.

Appeal by plaintiff from an order of the district court for Ramsey county, Otis, J., presiding, sustaining a demurrer to the complaint.

F. W. Zollman and John H. Ives, for appellant.

Geo. N. Baxter and John L. Townley, for respondents.

VANDERBURGH, J.

This action is brought against the administrator and heirs of Samuel J. Potter, deceased, to foreclose a mortgage executed by him to plaintiff in the year 1858, to secure a note for $100, payable six months from date. Potter was then a resident of this state, but thereafter removed therefrom, and died in Texas in 1867.

1. The heirs are, in such case, necessary parties to the action to foreclose the mortgage in this state, but the administrator is not a necessary party thereto, though, by reason of his relation to the estate, he is a proper party. The land descended to the heirs on the death of the ancestor, subject to the payment of debts in due course of administration; but the personal representatives take no title or interest therein, save only the right to the possession for the purposes of administration. Noon v. Finnegan, 29 Minn. 418, (13 N. W. Rep. 197.) A foreclosure sale, in an action against the administrator only, would therefore convey no title to the purchaser, though it might amount to an equitable assignment to him of the mortgage security. Stark v. Brown, 12 Wis. 572. The lien of the mortgage, and the right to foreclose the same, is not affected by the decease of the mortgagor or the proceedings to administer his estate, but no judgment for a deficiency in a suit to foreclose the same can be rendered against the heirs or personal representatives. Jones v. Tainter, 15 Minn. 423, (512.) In some states, the executor or administrator may be joined for such purpose, and the deficiency adjudged to be paid out of the assets in due course of administration. Leonard v. Morris, 9 Paige, 90. But in this state we apprehend the claim for the debt must be presented, allowed, and enforced as other claims against the estate of the deceased mortgagor. Commercial Bank v. Slater, 21 Minn. 174; Fern v. Leuthold, 39 Minn. 212, (39 N. W. Rep. 399.) The delay in the appointment of the administrator is no legal excuse for not sooner commencing proceedings to enforce the mortgage security, and the case did not fall within provisions of Gen. St. 1878, c. 66, § 18.

2. By reason of the lien of the mortgage upon real property situated in the state, the court had jurisdiction to enforce the security, notwithstanding the absence from the state of the mortgagor, his heirs or assigns; and for such purpose notice by the service of the summons by publication was sufficient. Under Gen. St. 1878, c. 66, § 15, it was held, in Whalley v. Eldridge, 24 Minn. 358, that the running of the statute of limitations was suspended as against non-resident absentees in foreclosure actions as well as others. But it was competent for the legislature to change the rule, and establish an absolute limit within which mortgages should be foreclosed by action, provided the time fixed was reasonable. Thi...