Jones v. Rich

• Citation: 50 P. 936,20 Mont. 289
• Parties: JONES v. RICH.
• Decision Date: 15 November 1897
• Court: Montana Supreme Court

50 P. 936

20 Mont. 289

JONES v. RICH.

Supreme Court of Montana

November 15, 1897

Appeal from district court, Beaverhead county; Frank Showers, Judge.

Action by Albert E. Jones against Josephus Rich, as administrator of the estate of Frank C. Slader, deceased. From a judgment for defendant, plaintiff appeals. Reversed.

This was an action to foreclose a mortgage securing a promissory note, the note and mortgage having been executed to plaintiff by one Slader. Defendant was the duly-appointed administrator of the estate of said Slader, deceased. The complaint contained the usual averments as to execution, nonpayment etc. After setting forth the appointment of the defendant as administrator and the publication of notice to creditors by him, it alleged "that within the time limited in said notice, to wit, on the 11th day of November, A. D. 1895, this plaintiff presented to the said defendant, as administrator of the estate of said decedent, the person to whom in said notice claims were required to be presented, his claim for the amount of the principal sum and interest due from said decedent to this plaintiff, as shown by said promissory note and mortgage, and as set forth in this complaint, as required by law, together with the necessary vouchers to entitle the said claim to be allowed and to rank among the acknowledged debts of said estate." There was no averment as to any action taken by the defendant administrator on the claim presented. In the relief prayed for, the plaintiff asked for a deficiency judgment in case the amount of money realized from a sale of the property should be insufficient to pay the note and costs of suit. Defendant interposed a demurrer to the complaint, on the ground that said pleading did not state facts sufficient to constitute a cause of action, and also on the ground that "said complaint was ambiguous unintelligible, and uncertain in this, to wit: It does not appear from the averments therein if or not the claim sued on has or has not been allowed by said defendant, or that plaintiff, by reason of inaction on the part of the defendant, elected to treat the claim as having been rejected." The demurrer was sustained, and, plaintiff electing to stand on his complaint, judgment was rendered for defendant. The appeal is from the judgment.

Henry R. Melton and Toole & Wallace, for appellant.

Burleigh D. Willis, for respondent.

BUCK J. (after stating the facts).

Section 2603, Code Civ. Proc. 1895, requires all claims arising from contracts to be presented to an administrator within a certain time. It is provided, however, in said section "that nothing in this title contained shall be so construed as to prohibit the right, or limit the time, of foreclosure of mortgages upon real property of decedents whether heretofore or hereafter executed, but every such mortgage may be foreclosed within the time and in the manner prescribed by the provisions of this Code, other than those of this title, except that no balance of the debt secured by such mortgage remaining unpaid after foreclosure, shall be a claim against the estate, unless such debt was presented as required by the provisions of this title." Section 2604 requires that a claim must be "supported by the affidavit of the claimant or someone in his behalf, that the amount is justly due, that no payments have been made thereon which are not credited," etc. It also provides that "the executor or administrator may also require satisfactory vouchers or proofs to be produced in support of the claim." Section 2606 provides for the...