Lundy v. Lemp

• Decision Date: 19 March 1919
• Citation: 32 Idaho 162,179 P. 738
• Parties: MAURICE H. LUNDY, Respondent, v. HERBERT LEMP, Executor of the Last Will of JOHN LEMP, Deceased, Appellant
• Court: Idaho Supreme Court

179 P. 738

32 Idaho 162

MAURICE H. LUNDY, Respondent, v. HERBERT LEMP, Executor of the Last Will of JOHN LEMP, Deceased, Appellant

Supreme Court of Idaho

March 19, 1919

ESTATES OF DECEASED PERSONS-CLAIMS-TIME FOR PRESENTATION.

Claims against estates of deceased persons, arising upon contracts which are not presented to the executor or administrator within the time limited in the notice required by law to be given to creditors are barred and no action can be maintained thereon.

[As to effect of statute of limitations against estates of deceased persons, see note in 130 Am.St. 324]

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. P. McCarthy, Judge.

Action to recover money paid on contract for purchase of real estate. Judgment for plaintiff. Reversed.

Judgment reversed. Costs awarded to appellant.

Alfred A. Fraser, for Appellant, cites authorities in Blake v. Lemp ante, p. 158.

Frawley & Koelsch, for Respondent.

What kind of a verified claim could respondent have presented to the executor of the Lemp estate during the time prescribed for presentation of claims? For money? The estate was not obligated to pay money; it was bound to make conveyance of the real property upon fulfillment of the contract on the part of respondent. There was no contingent claim such as is contemplated by sec. 5463, Rev. Codes, and hence the facts of this case do not bring it within the principles of law enunciated in the cases cited by appellant. (Hantzch v Massolt, 61 Minn. 361, 63 N.W. 1069; Riggin v. Maguire, 15 Wall. (U.S.) 549, 21 L.Ed. 232, see, also, Rose's U.S. Notes.)

MORGAN, C. J. Rice, J., Concurs, Budge, J., concurs in the conclusion.

OPINION

MORGAN, C. J.

The following facts, among others, are disclosed by the pleadings, were stipulated by the parties to be true, and were used by the trial judge, in lieu of evidence, as a basis for the judgment form which this appeal is prosecuted.

On March 25, 1911, respondent and John Lemp entered into a contract whereby the latter agreed to convey to the former certain lots in the Lemp Triangle Addition to Boise City in consideration of $ 1,700, payable in instalments, the last of which was to be due on March 25, 1914. Respondent paid upon the contract, in principal, interest, taxes and assessments, $ 1,121.20. The lots in question are a portion of a tract which was claimed by Boise City and the mayor commenced an action on or about September 25, 1912, to quiet title to it on behalf of the city. About September 25, 1913, respondent tendered to appellant an instalment due on the contract, which was refused by the latter and the former was informed that no further payments would be received until the termination of the suit, then pending, involving the ownership of the land.

It is alleged in the complaint, and the allegation is stipulated to be true, "that at no time since the execution of the contract for the purchase of said lots was the said John Lemp in position to convey the marketable, or any title to said lots, or either of them, nor has Herbert Lemp, executor of the said will of said John Lemp, deceased, been at any time in a position to convey a...