Land v. Wolken, No. 31996.

• Court: Supreme Court of Nebraska
• Writing for the Court: WENKE
• Citation: 21 N.W.2d 418,146 Neb. 684
• Docket Number: No. 31996.
• Decision Date: 11 January 1946
• Parties: COLUMBUS LAND, LOAN & BLDG. ASS'N OF COLUMBUS v. WOLKEN et al.

146 Neb. 684
21 N.W.2d 418

COLUMBUS LAND, LOAN & BLDG. ASS'N OF COLUMBUS
v.
WOLKEN et al.

No. 31996.

Supreme Court of Nebraska.

Jan. 11, 1946.

Appeal from District Court, Colfax County; Spear, Judge.

Action to foreclose a mortgage by Columbus Land, Loan & Building Association of Columbus, Nebraska, against Katie Wolken, Fred Rabeler, Jr., executor of the estate of Bernhard Wolken, deceased, and others. From a judgment against Fred Rabeler, Jr., executor of the estate of Bernhard Wolken, deceased, for balance remaining unsatisfied, the executor appeals.

Reversed.

[21 N.W.2d 419]

Syllabus by the Court.

1. There can be no mortgage without a debt. There may be agreements for the performance of obligations other than the payment of money; but leaving these out of view, it is essential that there be an agreement, either express or implied, on the part of the mortgagor, or some one in whose behalf he executes the mortgage, to pay to the mortgagee a sum of money either on account of a pre-existing debt or a present loan.

2. However, the personal liability of the mortgagor is not necessarily incident to a mortgage and the mortgage may be so framed or the authority to execute so limited as to exclude that element.

3. Unless authorized by statute or by the terms of a will, a personal representative may not mortgage the decedent's realty.

4. An executor or administrator, as such, has no inherent authority to borrow money; and loans to the representative which are not authorized by statute, will, or order of court do not bind the estate.

5. When a note and mortgage are executed and delivered by the representative of an estate pursuant to authority granted under the provisions of section 30-1201, Comp.St.1929, it does not make the representative of the estate liable for the debt or obligation so created. In case of foreclosure the owner or holder of the debt secured thereby must look solely to the property mortgaged for the satisfaction thereof.

6. The fact that the estate had been administered, final decree entered, and the property assigned and distributed to the heirs at law, and the executor discharged, did not bar or defeat this action against the executor of the estate. The trust of

[21 N.W.2d 420]

an executor is an enduring one, and the decree upon final accounting only discharges him from liability for the past.

7. In a suit to foreclose a mortgage on real estate the execution of the contract, the breach thereof, the identity of the real estate described therein, and the amount remaining due thereon are material and necessary issues to be determined by the decree.

8. In such a suit, the findings of fact contained in the decree on issues properly pleaded are not subject to review on objections to a deficiency judgment.

9. However, the foregoing rule is dependent upon a cause of action being pleaded showing personal liability and a decree finding such to be a fact and, if not, the application for a deficiency judgment is subject to any defense that the person against whom it is sought may have.

Edward Asche, of Schuyler, and Sidner, Lee & Gunderson, of Fremont, for appellant.

L. F. Otradovsky, of Schuyler, and Walter, Flory & Schmid, of Columbus, for appellees.

Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

WENKE, Justice.

The Columbus Land, Loan and Building Association of Columbus, Nebraska, a corporation, brought an action in the district court for Colfax County to foreclose a mortgage on lots 12 and 13, block 2, of Railroad addition to the village of Leigh, Colfax County, Nebraska. In this action it made Fred Rabeler, Jr., executor of the estate of Bernhard Wolken, deceased, Katie Wolken, Ben Wolken, and Phillip Wolken, parties defendant. After the premises had been sold, the sale confirmed and the proceeds received therefrom applied on the amount found due the plaintiff the court, on motion of the plaintiff, entered a judgment against the defendant, Fred Rabeler, Jr., executor of the estate of Bernhard Wolken, deceased, for the balance remaining unsatisfied. The executor has appealed from the entry of this judgment.

For the purpose of this opinion the appellee, Columbus Land, Loan and Building Association of Columbus, Nebraska, will be referred to as plaintiff and Fred Rabeler, Jr., executor of the estate of Bernhard Wolken, deceased, one of several defendants, as the executor.

The record discloses that Bernhard Wolken departed this life on March 24, 1929, a resident of Colfax County and left a will dated June 19, 1925. This will, which nominated Fred Rabeler, Jr., as executor, was offered for probate in the county court of Colfax County and was, on June 4, 1929, allowed and admitted as the will of the deceased. The executor nominated therein qualified on June 20, 1929.

This will disposed of all the property of the deceased by the following provision: ‘Second, After the payment of such funeral expenses and debts, I give, devise and bequeath all my personal property and all my real estate to my beloved wife Katie, for her use during her natural life only, and after her death all my said personal property and all my real estate of what-so-ever kind, shall be sold, and the proceeds thereof shall be divided as follows:-Two-thirds of said proceeds shall be divided equally, share and share alike, between my three sons, namely Ben, Edward and Phillip, and the other One-third of said proceeds shall be divided equally, share and share alike, between my grand children, (namely, children of the above mentioned three sons of mine, whoever they may be at that time).’

The personal property of the estate proved insufficient to satisfy the claims filed and allowed against the estate together with the costs of administration. Therefore, the executor of the estate made application to the district court for Colfax County for a license to mortgage lots 12 and 13 in block 2, Railroad addition to the village of Leigh, Colfax County, property of the deceased, for the sum of $4,500. The purpose of the loan was to pay the debts and costs of administration together with the sum still owing on a mortgage

[21 N.W.2d 421]

indebtedness on the premises. The court, on March 25, 1930, authorized the executor to execute and deliver to the plaintiff for and on behalf of the estate a first mortgage on the property above described in the sum of $4,500 and also a note or notes in the same amount to be secured thereby. The note and mortgage upon which the plaintiff based its foreclosure was executed and delivered to it by the executor on April 1, 1930, pursuant to the authority so granted him.

The executor thereafter filed his final account. The same was approved by the county court on June 13, 1930. On July 28, 1930, the executor was discharged.

On September 18, 1936, and again on April 27, 1939, the plaintiff entered into extension agreements with Katie Wolken, Ben Wolken, Edward Wolken, and Phillip Wolken wherein it extended the time for payment of the balance then owing upon the indebtedness secured by this mortgage.

On July 19, 1941, the plaintiff commenced its foreclosure action. Decree was entered therein on September 10, 1941, finding the amount due the plaintiff to be in the sum of $3,442.60 with interest at six per cent from July 1, 1941; that said amount is a first lien; and foreclosing the mortgage and directing a sale of the premises. On September 30, 1941, the executor, by his attorney, filed a written request for stay. On June 11, 1942, an order of sale was issued and pursuant thereto a sale of the premises was had. The sale was confirmed on September 9, 1942, and the proceeds applied on the indebtedness.

Katie Wolken having departed this life on March 3, 1942, the executor filed his petition in the county court of Colfax County on May 23, 1942, asking that his discharge be vacated and set aside and that he be reinstated as executor to carry out the provisions of the will. On June 30, 1942, the county court reopened the estate proceedings, decreed that the order of July 28, 1930, discharging the executor be vacated and set aside and that the executor be reinstated to carry out the provisions of the will.

On January 6, 1943, the plaintiff made application in the foreclosure proceedings for permission to withdraw the note and extension agreements for the purpose of bringing an action at law thereon against the defendants, or some of them, for the collection of any balance owing thereon. This request was granted by the court on the same day the application therefor was filed. Pursuant thereto and on October 22, 1943, an action was filed thereon in the district court for Colfax County by the plaintiff and against the executor, Ben Wolken, Phillip Wolken, and Phillip Wolken, administrator of the estate of Herman Edward...