Holland Bank v. Brockman
| Decision Date | 17 September 1932 |
| Docket Number | 5833 |
| Citation | 52 Idaho 324,14 P.2d 621 |
| Parties | HOLLAND BANK, a Corporation, Respondent, v. HULDA M. BROCKMAN, HULDA M. BROCKMAN, as Administratrix of the Estate of WALTER S. BROCKMAN, Deceased, et al., Appellants |
| Court | Idaho Supreme Court |
LIMITATION OF ACTIONS - STATUTE OF LIMITATIONS - RETROACTIVE OPERATION-TOLLING OF STATUTE-PAYMENTS BY ADMINISTRATRIX.
1. Administratrix's payment after husband's death of interest on community property mortgage, signed by her individually, was acknowledgment, tolling statute of limitations against foreclosure by mortgagee waiving recourse against estate (C. S., sec. 6609, and sec. 6631 Laws 1923, chap. 49).
2. Amended statute, making payment of principal or interest equivalent to new promise in writing to pay debt, so as to toll statute of limitations, held retroactive (C. S., sec 6631, Laws 1923, chap. 49).
3. Payments on mortgage debt by owner of equity of redemption toll statute of limitations against foreclosure by action in rem, though right of action on debt is barred as against original debtor (C. S., sec. 6609, and sec. 6631, Laws 1923, chap. 49).
APPEAL from the District Court of the Tenth Judicial District, for Idaho County. Hon. Miles S. Johnson, Judge.
Action to foreclose a mortgage. Judgment for plaintiff. Affirmed.
Judgment affirmed; costs to respondent.
J. H Forney and Guy W. Wolfe, for Appellants.
Where a mortgagee elects to foreclose and waives recourse against other property of a decedent's estate the general statutes of limitation apply. (Hibernia Sav. & Loan Soc v. Conlin, 67 Cal. 178, 7 P. 477; Berry v. Scott, 43 Idaho 789, 255 P. 305.)
An administrator cannot renew an obligation of the decedent by a new promise. (C. S., sec. 6631; Dern v. Olsen, 18 Idaho 358, Ann. Cas. 1912A, 1, 110 P. 164, L. R. A. 1915B, 1016.)
Nor is the payment of interest by a personal representative "equivalent to a new promise." (Haddad v. Chapin, 153 Wash. 163, 279 P. 583.)
The surviving wife is not bound by her payment of interest as an administratrix. (Haddad v. Chapin, supra.)
The plea of the bar of the statute of limitations is a valid defense. (Canadian Birkbeck etc. Co. v. Williamson, 32 Idaho 624, 186 P. 916; Pridgeon v. Greathouse, 1 Idaho 359.)
Cox, Martin & Ware, for Respondent.
The payment of interest tolls the running of the statute of limitations. (C. S., sec. 6631, as amended 1923 Sess. Laws, p. 57; North Pacific Mtg. Co. v. Sieler, 146 Wash. 530, 264 P. 4; Rositzke v. Meyer, 159 N.Y.S. 464, 162 N.Y.S. 613; Ellis v. Snyder, 83 Kan. 638, 32 L. R. A., N. S., 253; Perry v. Horack, 63 Kan. 88, 88 Am. St. 225, 64 P. 990.)
Where the personal representative is entitled to the entire estate as sole heir, legatee or devisee, he has the same power to waive the statute of limitations as the debtor had in his lifetime. (Sumter v. Morse, 11 S.C. Eq. (2 Hill 87; Suhre v. Benton, (Tex. Civ. App.) 25 S.W. 822.)
On October 27, 1917, Walter S. Brockman and wife, Hulda, defendant and appellant, executed their promissory note in the sum of $ 10,000, payable October 27, 1922, to plaintiff and respondent, Holland Bank, and secured the same by a mortgage on certain community real property situated in Idaho county. Brockman died intestate on August 4, 1918, having fully paid all interest as it accrued. One, Dyer, qualified as administrator and paid the interest for the years 1919 and 1920. Succeeding him, as administratrix, Hulda Brockman regularly paid the annual interest to October 27, 1926. Respondent brought suit to foreclose October 21, 1930, waiving all recourse against the estate. In defense, appellant set up the five-year statute of limitations (C. S., sec. 6609). Trial by the court resulted in a judgment for respondent. Mrs. Brockman has appealed, as administratrix and individually.
The several errors assigned may be reduced to the one contention that the payments of interest by the administratrix were made without authority and could not toll the statute under the provisions of C. S., sec. 6631, as amended by the 1923 Sess. Laws, chap. 49, p. 57. To sustain such proposition, appellant cites the rule announced in Dern v. Olsen, 18 Idaho 358, Ann. Cas. 1912A, 1, 110 P. 164, L. R. A. 1915B, 1016, to the general effect that an administrator of the estate of a deceased person has no power or authority to waive the bar of the statute of limitations or "extend the time that the statute may run against a debt which was not barred at the time of the death of the decedent."
The facts in Dern v. Olson, supra, were vastly different from those in the case at bar. In that case, there were divers heirs and creditors interested in the estate, claiming that their respective interests were being prejudiced by the unauthorized, new promise given a creditor by the administrator. Here, the administratrix is the exclusive owner of the entire estate, respondent being the only apparent creditor. And while it is true that, although one and the same person, Hulda Brockman, the individual, was in contemplation of law distinguished from Hulda Brockman, the official whose duty it was to administer the estate according to law and who would have been without authority to favor one creditor's claim to the detriment of another's, manifestly, there is no one who can charge injury and demand relief therefor. In the absence of creditors, where the personal representative is the sole owner and beneficiary of the estate, such representative can handle the estate as he pleases, for only to himself is he accountable, there being no one to say him Nay Vide the cogent reasoning of Smith v. Pattie, 81 Va. 654, 664, and the announcements of Sumter v. Morse, 11 S.C. Eq. 87, 93, and Suhre v. Benton, (Tex. Civ. App.) 25 S.W. 822.
Having received a benefit, the instant creditor does not complain. Nor can Hulda Brockman, the individual, take refuge behind the skirts of Hulda Brockman, the administratrix. As individual, she was joint beneficiary of the community debt participating in the disposition of its fruits. By the payment of interest, she invited and enjoyed respondent's indulgence, knowingly lulling it into a sense of security. As administratrix, she can suffer no injury; as individual, she stands to lose only that for which the community had already received full...
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