McKenzie v. Matthews

• Decision Date: 19 November 1907
• Parties: MCKENZIE v. MATTHEWS ET AL.
• Court: Alabama Supreme Court

44 So. 958

153 Ala. 437

MCKENZIE v. MATTHEWS ET AL.

Supreme Court of Alabama

November 19, 1907

Appeal from Chancery Court, Coosa County; W. W. Whiteside Chancellor.

Bill by Mamie Ware Matthews and others against J. D. McKenzie administrator. From the decree, the administrator appeals. Corrected and affirmed.

D. H Riddle, for appellant.

George A. Sorrel, for appellees.

DENSON J.

This is a bill by the distributees of an estate to remove the administration from the probate court into the chancery court and for a final settlement of the estate in the chancery court. The chancery court assumed jurisdiction and directed the administrator to file a report showing the condition of the estate. He filed a report showing that the estate was insolvent. A reference was held by the register, under a decretal order made by the chancellor, and he reported that the estate was solvent. This report was confirmed, the administrator was ordered to file his accounts and vouchers for a final settlement, and the register was ordered, when the same were filed, to hold a reference for the purpose of passing upon and auditing said account. The administrator filed his accounts and vouchers, a reference was held, and a report was made ascertaining the balance in the hands of the administrator, showing the outstanding claims against the estate and to whom they were due. This report was by the chancellor corrected in some particulars, and confirmed as corrected; and a final decree was rendered against the administrator, in favor of the creditors, for the amounts found to be due them, respectively, and in favor of the distributees for their respective shares of the balance left in the administrator's hands after paying the debts and the expenses of the administration of the estate, including court costs. From this decree the administrator appeals.

Numerous grounds of error are assigned, but it is not deemed necessary to consider them in detail. The principal subject of contention in the case is a debt claimed by the administrator against the deceased. The debt is evidenced by notes and a mortgage given to secure them. The mortgage covers land owned by the deceased at his death. The notes were given in 1891, and fell due in 1892, 1893, and 1894; the last one on March 12, 1894. The notes were not sealed instruments. Appellant's intestate died in December, 1900, and the mortgaged lands were sold by the administrator, as the property of the estate, under an order of the probate court, to pay debts. The administrator sought, on the report of insolvency and in his account for a final settlement, to have credit for the proceeds of the land (which amounted to less than his claim under the notes and mortgage) as paid to himself on his claim against the decedent. This claim was resisted by the appellees, first, on the ground that the notes evidencing the debt were barred by the statute of limitations of six years. The administrator, in response to this insistence, contended that the mortgage being under seal prevented the bar of the statute. "Debt evidenced by a simple promissory note is barred by the statute of six years, and, though secured by a mortgage, it still remains a simple contract; * * * and the fact that real estate is pledged as collateral security for its payment, by way of mortgage, cannot render it a specialty." Angell on Limitations (6th Ed.) §§ 73, 92. And, whatever may be the rights or the remedy of the mortgagee in respect to the lien on the property mortgaged, his right to participate in the distribution of the estate and his remedy to enforce the debt are cut off by the statute of six years. Angell on Lim. (6th Ed.) § 73; Clarke v. Tiger, 2 Stark. 234; Id., 3 Com. Law, 330; Jackson v. Sackett, 7 Wend. (N. Y.) 94; Slaymaker v. Wilson, 1 Pen. & W. (Pa.) 219; Smith v. Gillam, 80 Ala. 296; Duval's Heirs v. McLoskey, 1 Ala. 708; Hood, Adm'r, v. Hammond, 128 Ala. 569, 30 So. 540, 86 Am. St. Rep. 159.

It is also insisted by the complainants that, conceding the mortgage was unsatisfied, yet, the administrator (the mortgagee) having sold the real estate mortgaged under the order of the probate court obtained by him, and by order of the court conveyed to the purchaser after the report of the sale was confirmed, he is not entitled to credit for his debt as having been paid out of the proceeds of the sale. The cases of McNeill's Adm'r v. McNeill, 36 Ala 117, 76 Am. Dec. 320, and Pryor v. Davis, 109 Ala. 117, 19 So. 440, are cited in support of this insistence. These two cases have been recently considered and reaffirmed in the case of Denman v. Payne (Ala.) 44 So. 635. The only difference between the case in judgment and the case last cited lies in the fact that here the administrator is the mortgagee. We are unable to see that this difference is material...