Hiller v. Matheny

Decision Date09 May 1927
Docket Number11852.
Citation256 P. 10,81 Colo. 459
CourtColorado Supreme Court

Error to District Court, Alamosa County; Jesse C. Wiley, Judge.

Suit by C. H. Matheny against O. A. Hiller, as administrator of the estate of William H. Buer, deceased. Judgment for plaintiff and defendant brings error, and applies for supersedeas.

Reversed with directions.

Moses & Ellithorp, of Alamosa, for plaintiff in error.

J. D Pilcher and Charles H. Woodard, both of Alamosa, for defendant in error.


The defendant in error obtained a decree foreclosing a trust deed and a mortgage given by William H. Buer. The administrator of Buer's estate seeks a reversal of the decree.

On January 29, 1923, William H. Buer executed and delivered to the plaintiff a promissory note for $3,500, payable one year after date, with interest at the rate of 8 per cent. per annum from its date until due. The note contained the provision that, if the note is not paid promptly at maturity, the unpaid principal and interest shall bear interest at the rate of 12 per cent. per annum from maturity until paid; and also provided for the payment of 10 per cent. 'additional on amount due, as attorney's fees for collection.' To secure the payment of the note, the maker gave a trust deed of certain land, and also a mortgage of certain lots. Neither the trust deed nor the mortgage provides for the payment of an attorney's fee. On October 25, 1925, Buer died, and defendant Lilly Swartz Buer was appointed administratrix of his estate. On December 14th the plaintiff filed in the county court, where the estate was being administered, his claim for the amount due upon Buer's promissory note. The court allowed the claim as a claim of the fifth class. On November 13, 1926, the plaintiff brought this suit to foreclose the trust deed and the mottgage. Lilly Swartz Buer having resigned as administratrix, O. A. Hiller, the plaintiff in error, was appointed administrator, and filed an answer. On March 25, 1927, the case was tried, and the court decreed a foreclosure. In determining the amount due, the court included interest at the rate of 12 per cent. per annum, as provided in the note, and also an attorney's fee of $321.81. The decree also provided that, if the proceeds of the sale were not sufficient to pay the amount found due, a deficiency judgment against the 'defendants' shall enter, and that William H. Buer pay to the plaintiff the amount of such deficiency judgment, with interest, and that the plaintiff have execution 'thereof.'

1. The decree should not have provided for a deficiency judgment against William H. Buer. The complaint alleged his death over a year before the commencement of the suit. Although he was improperly named as a defendant in the original complaint, his name was omitted from the amended complaint.

2. In providing for a deficiency judgment against the defendants, the decree provided that execution shall issue. So far as the administrator is concerned, this is erroneous. A money judgment against an administrator is payable only out of the decedent's estate in due course of administration.

3. Among the defendants are seven heirs of the decedent, and also the public trustee of Alamosa county, not one of whom is liable for the debt. Providing in the decree for a deficiency judgment against the 'defendants' was clearly an inadvertence; and, although the heirs and the public trustee are not parties to this writ of error, this palpable mistake in the decree should be corrected.

4. The plaintiff in error contends that the trial court erred in including the attorney's fee as part of the indebtedness, and also in computing interest at 12 per cent. instead of at 8 per cent. The allowance by the county court of the plaintiff's claim was a judgment on the promissory note. Section 5340, C. L., is as follows:

'The county court shall make

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6 cases
  • MORTGAGE INVESTMENTS v. Battle Mountain
    • United States
    • Colorado Supreme Court
    • May 12, 2003
    ...the note loses its identity and merges into the judgment. Ott v. Edwards, 161 Colo. 187, 420 P.2d 837, 838 (1966); Hiller v. Matheny, 81 Colo. 459, 256 P. 10, 11 (1927). At this point, the form of the debt has changed, but the merger and extinguishment of the note do not discharge the debt ......
    • United States
    • Colorado Court of Appeals
    • October 10, 2002
    ...trust then stands as security for the judgment, and the holder can foreclose the deed of trust to pay the judgment. See Hiller v. Matheny, 81 Colo. 459, 256 P. 10 (1927). "[T]he holder of a note secured by deed of trust has two remedies: 1. A suit on the debt evidenced by the promissory not......
  • Ott v. Edwards
    • United States
    • Colorado Supreme Court
    • December 5, 1966
    ...merged in the judgment. Originally the debt 'was evidenced by a promissory note; now it is evidenced by the judgment.' Hiller v. Matheny, 81 Colo. 459, 256 P. 10. Since the judgment became the evidence of the debt, its payment or release left nothing upon which the security could rest. Pric......
  • Holscher v. Ferry
    • United States
    • Colorado Supreme Court
    • February 28, 1955
    ...court where the Holscher estate was pending. They were merged in the judgment of that court when the claim was allowed. Hiller v. Matheny, 81 Colo. 459, 256 P. 10. A remedy based on the theory of an affirmance of the contract is inconsistent with a remedy arising out of the same facts based......
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