Lawrey v. Sterling

• Decision Date: 07 July 1902
• Parties: LAWREY v. STERLING et al.
• Court: Oregon Supreme Court

69 P. 460

41 Or. 518

LAWREY v. STERLING et al.

Supreme Court of Oregon

July 7, 1902

Appeal from circuit court, Union county; Robert Eakin, Judge.

Mortgage foreclosure suit by M.A. Lawrey against Henry V. Sterling and others. From a foreclosure decree, defendants appeal. Affirmed.

This is a suit to foreclose a mortgage. The facts are that, M Sterling having died seised of certain real property in Union county, Or., the county court thereof appointed J.L. Caviness administrator of his estate, who, having duly qualified filed in said court a verified petition, in pursuance of which he secured an order authorizing him to procure a loan of $2,484, to pay a certain claim against the estate and the expenses of administering thereon, and to give a mortgage on said land as security for the loan. He thereupon borrowed from the state land board, October 23, 1900, the sum of $2,084 belonging to the irreducible school fund; executing a promissory note therefor in his representative capacity payable in one year, with interest at 6 per cent. per annum stipulating therein to pay a reasonable sum as attorney's fees, in case suit should be instituted to collect the same; and giving a mortgage on said real property to secure the payment of the note. The mortgage having been recorded, the note was assigned to the La Grande National Bank, which transferred it to plaintiff, who commenced this suit to foreclose the lien; making George W. Sterling, Schuler Sterling, Mary T. Jackson, and Henry V. Sterling, heirs of said deceased, and J.H. Lawrey, Thomas Wade, and A. Fergason, defendant; alleging in the complaint that such heirs were the owners in fee of said premises, and that the other defendants claimed some interest therein, but, if any such they had, it was inferior to plaintiff's lien. The defendants Henry V. Sterling, Thomas Wade, and A. Fergason, alone answered; denying each allegation of the complaint except the appointment and qualification of the administrator, and that said heirs were the only persons inheriting said property. A trial being had, the court found that there was due on the note the sum of $2,267.74, and that $200 was a reasonable sum as attorney's fees, and decreed a foreclosure of the mortgage, from which the defendants so answering appeal.

Turner Oliver, for appellants.

John H. Lawrey, for respondent.

MOORE J. (after stating the facts).

The court having admitted in evidence, over the defendants' objection and exception, the order of the county court of Union county licensing the administrator to secure a loan and to give a mortgage on the real property of the decedent's estate as security therefor, the note and mortgage executed in pursuance of such authority, and the written assignment thereof to the La Grande National Bank, it is contended that the statute under which said order was made violates the organic law of the state; that the method prescribed for invoking the power of the county court to grant such order was not pursued; and that the state land board had no authority to assign the note and mortgage, and hence the court erred in admitting the evidence so objected to.

Considering the objections in their order, the constitutional provision claimed to have been violated is as follows: "Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title." Const. art. 4, § 20. The statute in question, including the title, reads as follows:

"An act to authorize executors and administrators to redeem real estate sold under decree or judgment, and to borrow money upon the property of the estate, to facilitate the settlement of the estates of decedents.

"Be it enacted by the legislative assembly of the state of Oregon:

"Section 1. That hereafter it shall be lawful for any executor or administrator of an estate of any decedent to redeem, for the benefit of the estate, any real estate belonging to the estate which may at any time hereafter be sold at public auction, either by decree of court on foreclosure of mortgage or upon judgment, in the same manner and upon the same terms that property may be redeemed by any debtor.

"Sec. 2. That it shall be lawful for any executor or administrator, at any time hereafter, with the consent of the county court within whose jurisdiction such property may lie, to borrow money upon any property belonging to the estate, and to execute a mortgage thereon as security, for the purpose of funding the indebtedness against the estate, when it is shown by affidavit that the money can be secured for the same or a less rate of interest than that already paid, and for the further purpose of paying the interest on outstanding obligations that are liens on premises to be mortgaged when it is shown by affidavit to be necessary, whether said property has or has not before that time been mortgaged by the decedent or his executor or administrator.

"Sec. 3. That all acts and parts of acts in conflict with the foregoing be and the same are hereby repealed."

Approved October 15, 1893. Laws 1898, p. 34.

It is argued that this act embraces two disconnected subjects, both of which are expressed in the title, viz.: To empower the executor or administrator to redeem real property belonging to the decedent's estate that may be sold at public auction under a decree or judgment; and also to authorize him to borrow money on the property of the estate, giving a mortgage thereon as security. The object of the constitutional mandate that "every act shall embrace but one subject and matters properly connected therewith, which subjects shall be expressed in the title," was to prevent matters wholly foreign to the subjects specified in the title from being inserted in the body of the act. Simpson v. Bailey, 3 Or. 515; McWirter v. Brainard, 5 Or. 426. An examination of the original bill (house bill No. 58), on file in the office of the secretary of state, shows that it was entitled, "A bill for an act to facilitate the settlement of the estates of decedents." Section 2 thereof was as follows: "That it shall be lawful for an executor or administrator, at any time hereafter, with the consent of the county court within whose jurisdiction such property may lie, to borrow money upon any property belonging to the estate and to execute a mortgage thereon as security, whether said property has or has not before that time been mortgaged by the decedent or his executor or administrator." The judiciary committee of the house of representatives, to which the bill was first referred, recommended an amendment thereto, which, upon motion, was adopted (House Journal 1898, p. 222), and became section 2 of the act, no other changes having been made in the original bill except the title, which was amended (House Journal 1898, p. 128), as hereinbefore quoted. A comparison of the original bill with the act as passed discloses that the only amendment adopted contains a statement of the purposes for which money may be borrowed, and prescribes the method whereby the consent of the county court may be secured. The act does not, in express terms, authorize the borrowing of money with which to redeem real property, belonging to the decedent's estate, that may have been sold under a decree or judgment; but, as a lien of this character is an indebtedness against said estate, the right to borrow money for the purpose of funding such indebtedness necessarily carries with its exercise a grant of power to borrow money to be used in redeeming real property from such sales. An analysis of the language of the act, so construed, shows that its subject is to authorize the borrowing of money on the property of a decedent's estate, to redeem it from sale under a decree or judgment, or to fund other indebtedness against the estate, including interest on outstanding obligations that are liens on the premises to be mortgaged. Without the power to borrow money, it might be impossible to redeem such real property from sale, but, by the method prescribed, the legislative assembly has wisely provided a means whereby premises sold for an inadequate sum may be saved to the heirs, and the day of immediate payment of a debt postponed; thereby possibly tiding the property over the period of a ruinous panic. So too, an exercise of the authority to borrow money to be used in funding the indebtedness of a decedent's estate may prevent a sale of the property at an inopportune time; thereby retaining the title until, possibly, the rents and profits pay the mortgage necessarily placed thereon by the executor or administrator, whereupon the heirs may take the premises freed from all obligations. The subject of the act under consideration is, therefore, the granting of power by the county court to an executor or administrator to borrow money, and the incident to the exercise of such power is the right to use the money so borrowed in paying the indebtedness against the estate of a decedent, including the redemption of the real property thereof that may be sold under a decree or judgment. The purpose for which the money may be used is properly connected with an exercise of the power to borrow it. The title of the act might have been transposed so as to conform to the interpretation here given, but in the form adopted by the legislative assembly it fairly expresses the single subject of the act, and, so long as it does so, no reason exists for declaring the statute in contravention of the clause of the constitution invoked to establish its invalidity. Anderson v. City of Camden, 58 N.J.Law, 515, 33 A. 846; David v. Committee, 14 Or. 98, 12 P. 174; State v. Koshland, 25 Or. 178, 35 P. 32.

Did the administrator pursue the method prescribed by the act, so as to confer jurisdiction upon the county cour...