Kirman v. Powning
| Decision Date | 14 April 1900 |
| Docket Number | 1,575. |
| Citation | 60 P. 834,25 Nev. 378 |
| Parties | KIRMAN v. POWNING. |
| Court | Nevada Supreme Court |
Appeal from district court, Washoe county; B. F. Curler, Judge.
Action by R. Kirman against Clara A. Powning, as administratrix of the estate of C. C. Powning, deceased. Judgment for defendant, and plaintiff appeals. Reversed.
Alfred Chartz, for appellant.
A. E Cheney and Oscar J. Smith, for respondent.
The appellant instituted this action to foreclose a mortgage. A demurrer to the complaint was interposed and sustained, and a judgment rendered in favor of the respondent. The appeal is taken from the judgment and the order sustaining the demurrer.
The facts shown by the complaint are that C. C. Powning died intestate at Washoe county, Nev., about the 4th day of November, 1898, leaving an estate therein; that on the 6th day of December, 1898, an order was made by the district court of said state in and for said county appointing the respondent administratrix of the estate of said decedent, and that on said day letters of administration were regularly issued to her as administratrix of said estate, and that ever since she has been and is the appointed, qualified, and acting administratrix of said estate; that on the 17th day of December, 1896, at said county of Washoe, the said C. C Powning, deceased, executed and delivered his certain promissory note, bearing date of that day, to the appellant by which he promised to pay appellant, on or before June 17, 1897, $2,500 at the banking office of the Washoe County Bank, with interest at the rate of 8 per cent. per annum from date until paid, a copy of which note is fully set out; that to secure the payment of said principal sum and interest mentioned in said note the said Powning executed under his hand and seal, and delivered to the appellant, a mortgage bearing date of December 17, 1896, conditioned for the payment of said sum and interest, which mortgage was duly acknowledged and certified and recorded on the 19th day of December, 1896, in the office of the county recorder of Washoe county in Book M of Mortgages, page 537. A copy of the mortgage, containing a description of the real estate covered thereby, with the indorsements, thereon, is fully set out in the complaint. It is further shown: That there is due and unpaid to the appellant on said note and mortgage the principal sum and interest thereon at the specified rate, amounting to $400. That on the 31st of December, 1898, and within the time allowed by law for the presentation of claims against the estate of said C. C. Powning, the appellant presented his said claim, duly verified, to the administratrix of said estate for allowance, and filed the same with the clerk of the court for the amount hereinbefore set forth. That thereafter, and within the time allowed by law, the respondent considered said claim, and allowed the same by statutory limitation, and thereafter she notified appellant to be and appear before the judge of said court, and show cause why said claim should be allowed. That, pursuant thereto, appellant appeared before said judge to show cause, as aforesaid, and offered said judge, sitting in chambers, the original note and mortgage herein before set forth, for the purpose of attaching the same to said claim as filed. Counsel for respondent interposed no objection to said offer, and appellant left said original note and said original mortgage with the said judge for the purpose of attaching the same to said claim, and making the same a part thereof, and said judge retained said note and mortgage until the ___ day of June, 1899. That on the 15th day of May, 1899, said judge considered said claim, and, while in possession of said note and mortgage, rejected the same. That the claim presented is in the words and figures following: To this claim there was attached the statutory affidavit. The appellant asks for a decree of sale of the land in the usual manner, the proceeds to be applied to the discharge of the amount due, and for the usual relief in proceedings of foreclosure, waiving recourse to any other property of said deceased other than the property described in the mortgage.
The important question to be considered is made by the claim of the respondent that no action can be maintained against the representative of a deceased person to foreclose a mortgage upon any property of the deceased, under the statutes of this state regulating the settlement of the estates of deceased persons, unless the same has been presented to such representative within the time and in the manner prescribed by said statute. In support of this contention it is argued that the statute giving to the representative of a deceased person possession and control of all the property of the intestate, the right to maintain actions to recover the possession of all the real estate of the deceased, and damages thereto, the right to the rents, issues, and profits of the same, and the imposed duty to keep the same in reasonable repair, the duty to inventory and appraise all the estate of the deceased, and his many other duties regarding accounting, sale of property, order of the payment of debts, shows that such was the intention of the legislature in the passage of the act. While the question is not a new one, and there seems to be some conflict in the decision of the question between the courts of the various states,--such conflict doubtless arising from the form of the various statutes, or the language used therein,--yet, so far as this court is concerned, because of the recent passage of the act regulating the settlement of estates of deceased persons, the question is comparatively new, and a just and reasonable determination involves the judicial construction of the act, aided, in some respects, by the opinions of other courts upon statutes in many points similar to our own, where such opinions seem to be based upon sound logic and reason. Briefly stated, by the requirements of said act "all persons having claims against the deceased" must within a certain time file the same, with necessary vouchers, with the clerk of the court; if the claim be not filed within the time specified, "it shall be forever barred." It is further required that such claim shall be supported by affidavit, the form and contents of which are fully set out in the act. It is made the duty of the administrator within a certain time to indorse thereon his rejection or allowance of such claim, and within a limited time thereafter he is required to present all claims allowed by him to the district judge for his approval or rejection. Quoting from the act, it is further provided that: Comp. Laws 1900, §§ 2893-2896. A mortgage is something more than a "claim against the deceased." It is a lien upon the specific property described therein, carrying with it the right, in case of default, of action to foreclose, and by such proceedings have applied to its discharge the proceeds arising from the sale of the specific property. The district judge acting in probate matters under the sections above cited has no power or authority to determine the question of the validity or invalidity of the lien of the mortgage, or to make any decree or order for the sale of the mortgaged premises upon the presentation of the claim as defined in the statute. His allowance or rejection of the claim does not determine the validity of the lien created by the mortgage. It is not sufficient to say that the act prescribing the order of the payment of the debts of the decedent confers authority upon the district judge to determine in this manner the validity of the mortgage lien. The statute makes a distinction between liens of mortgages and "claims against deceased persons." "If the claim be founded upon a bond, bill, note, or other instrument, the original instrument need not be filed, but a copy with all indorsements may be attached to the statement of a claim and filed therewith, and if the claim be secured by mortgage or other evidence of lien, it...
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