Killilea v. Douglas (In re Hanlin's Estate)

• Decision Date: 15 October 1907
• Citation: 133 Wis. 140,113 N.W. 411
• Parties: IN RE HANLIN'S ESTATE. KILLILEA v. DOUGLAS.
• Court: Wisconsin Supreme Court

133 Wis. 140

113 N.W. 411

IN RE HANLIN'S ESTATE.

KILLILEA

v.DOUGLAS.

Supreme Court of Wisconsin.

Oct. 15, 1907.

Syllabus by the Judge.

In case of the enforcement of a mortgage by foreclosure suit after the decease of the mortgagor and the appointment of an administrator of his estate the latter is not a proper party for the purpose of establishing liability of such estate for the mortgage indebtedness; such liability being enforceable only in the proper county court.

The administrator of the estate of a deceased person having been made a defendant in a foreclosure action to enforce a mortgage given by the decedent with the owner of the mortgaged premises by a deed with full covenants from the deceased; and a judgment having been rendered, among other things, decreeing the administrator to be personally liable in his representative capacity for the mortgage indebtedness, and he having appealed, resulting in such decree being reversed as to him because of it not being proper in the action to settle the question of the liability of the estate for the indebtedness, and subsequently the cause having been, accordingly, dismissed as to the administrator, the liability of the estate for the mortgage indebtedness and to the covenantee under the deed aforesaid in case of his paying off the same for his protection, is left wholly unadjudicated.

The statute of limitations (section 3860, St. 1898), bears on a right from the time there is a cause of action to enforce it.

A cause of action does not accrue until the party owning it is entitled to begin and prosecute an action thereon. It accrues at the moment when he has a legal right to sue on it and no earlier.

There is a technical breach of the covenant against incumbrances in a conveyance of real estate, in case of there being an outstanding mortgage upon the property, as soon as the deed is delivered, but it only gives rise to an action by the covenantee for nominal damages.

In case of a conveyance of land with full covenants and there being an outstanding mortgage, no action lies for substantial damages in advance of an eviction, or the owner of the land entitled to the benefit of the covenant paying off the incumbrance.

The covenant against incumbrances runs with the land and inures to the owner who suffers ouster or who is damaged by being compelled to extinguish the incumbrance. Such covenant is not breached, except technically, in advance of eviction or the suffering of actual damages, hence no right of action for such a breach accrues until such time.

The right of action for substantial damages for breach of a covenant against incumbrances, which runs with the land, is regarded as distinct from the technical breach occurring at the time of the delivery of the deed. The time when the cause of action to remedy one accrues bears no relation to the time when the cause of action arises to remedy the other.

A cause of action for breach of covenant against incumbrances made by a person subsequentlydeceased does not arise so as to be enforceable against his estate until the covenantee or some person entitled to the benefit of the covenant shall have suffered actual damages.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

In the matter of the estate of Margaret Hanlin. From an order allowing the claim of R. Bruce Douglas, Henry J. Killilea, administrator, appeals. Affirmed.

Appeal from the circuit court for Milwaukee county from a judgment allowing a claim against the estate of Margaret Hanlin.

The facts of the case are these: R. Bruce Douglas is the owner of lot 14, block 223, Cambridge's subdivision No. 2, in the Eighteenth Ward of the city of Milwaukee, Wis. He obtained his title by deed with full covenants from Mary Jane Hayes and Thomas E. Hayes, her husband, September 3, 1898, the deed being duly recorded September 6, 1898. The grantee, Mary Jane Hayes, obtained title from the deceased by deed with full covenants, January 15, 1898, which deed was duly recorded. When the deceased made such deed, part of the premises was under mortgage made by her and her husband, dated November 25, 1891, and duly recorded. There was a pretended release of the mortgage but it was fraudulently obtained and placed upon record. The mortgage was duly foreclosed, judgment being rendered November 26, 1904, in which the indebtedness secured was fixed at $1,580.16. In the foreclosure action the administrator of the estate of the deceased and R. Bruce Douglas were made defendants. No issue was joined in the action by the pleadings as regards the liability of the administrator for the indebtedness secured by the mortgage. Nevertheless, at the request of R. Bruce Douglas findings were made to the effect that he was so liable. The administrator appealed from the judgment. In the proceedings upon the appeal Douglas did not participate. The appeal resulted in the court holding that the question of whether the estate of Margaret Hanlin was liable for the indebtedness secured by the mortgage was not one proper to be settled in the action. The judgment was therefore reversed as to the administrator and remanded to the trial court, where the complaint as to him was dismissed. Thereafter Douglas was obliged to, and did redeem the mortgaged premises from the judgment of foreclosure. The redemption was made February 16, 1906, the amount paid being $1,721.23. Mr. Douglas reasonably expended in resisting the foreclosure $187.77. The time for filing general claims against the estate of the deceased expired the 1st day of January, 1902. Douglas filed his claim February 26, 1906.

Upon findings of the court as to the facts corresponding with the foregoing statement, the legal conclusion was reached that the claimant's demand accrued and became absolute after the time limited for general creditors to present their demands; that it was seasonably filed and that there was justly due thereon $1,909.50, with interest from February 16, 1906. Judgment was rendered accordingly, from which this appeal was taken.

Adolph Huebschmann, for appellant.

Quarles, Spence & Quarles (J. V. Quarles, Jr., of counsel), for respondent.

MARSHALL, J. (after stating the facts as above).

The point is made by the learned counsel for appellant that the judgment in the foreclosure suit is res adjudicata of whether the estate is liable to pay the indebtedness which was the ground of respondent's claim. As indicated in the statement, no issue was raised in the foreclosure suit on that subject, though at the request of respondent the trial court therein made findings that the administrator of the estate of the deceased was personally responsible for the mortgage indebtedness and judgment was so rendered, and it was afterwards in due proceedings to that end reversed and the cause dismissed as to him. It seems quite plain that the question of whether the estate of Margaret Hanlin was liable for the mortgage indebtedness was thus effectually removed from the case and that it necessarily carried with it all opportunity for litigating whether the estate was liable over to respondent in case of his paying off the indebtedness.

Whatever liability there was of the estate on account of the mortgage indebtedness, from any point of view, was manifestly enforceable only by proper proceedings in the...