Nat'l Life Ins. Co. v. Fitzgerald
| Decision Date | 17 April 1901 |
| Parties | NATIONAL LIFE INS. CO. v. FITZGERALD ET AL. |
| Court | Nebraska Supreme Court |
1. An action to foreclose a mortgage is not a suit to recover money only, and consequently is not within the prohibition of section 227, c. 23, Comp. St. 1899.
2. A mortgagee may, after the death of the mortgagor, institute a suit to foreclose his mortgage, and the mere filing in the county court of the mortgage debt as a claim against the decedent's estate while the foreclosure suit is pending will not operate as a release or discharge of the mortgage.
3. Whether, under section 848 of the Code of Civil Procedure, a mortgagee is entitled to have his debt against the general estate of a deceased mortgagor allowed in the county court while his foreclosure action is pending, quære.
4. A judgment fixing the personal liability of defendants in a foreclosure suit can only be reviewed after a deficiency judgment has been rendered.
Appeal from district court, Lancaster county; Holmes, Judge.
Action by the National Life Insurance Company against Mary Fitzgerald and others. Judgment for plaintiff. Defendants appeal. Affirmed.James Manahan, for appellants.
S. L. Geisthardt, for appellee.
This cause comes here by appeal from a decree foreclosing a real-estate mortgage given by John and Mary Fitzgerald to secure the sum of $12,000 due from them to the Clark & Leonard Investment Company. John Fitzgerald is now dead, and his widow, Mary Fitzgerald, is the administratrix of his estate. The appellee, the National Life Insurance Company, having succeeded to the rights of the investment company, commenced this suit to foreclose its mortgage after the death of Mr. Fitzgerald, and while his estate was being administered in the county court. Afterwards, but before the decree of foreclosure was rendered, the evidence of the debt secured by the mortgage was filed in the county court as a claim against the Fitzgerald estate. Upon this claim the court has not yet acted. It has neither been allowed nor disallowed. Nevertheless it is, on behalf of appellants, contended that what has been done amounts in law to a waiver and abandonment of the mortgage. The argument in support of this position is that the filing of the claim was the assertion of a general lien, which is inconsistent with the existence of the special lien on a part of the decedent's estate. Every mortgagee secures by his contract a special lien on some part of his debtor's property, and, speaking generally, a right to appropriate the whole of such property, if necessary, to satisfy his claim. These rights continue during the debtor's life, and they are not lost by his death. When the debtor dies, the creditor's remedy for the enforcement of unsecured claims is altered, but his contract rights remain the same as before. He may still enforce his specific lien without forfeiting his right to share with other creditors in the general assets in the hands of the executor or administrator. It may be that the plaintiff could not, in view of the provisions of section 848 of the Code of Civil Procedure, enforce his claim in the county court during the pendency of the foreclosure suit; but that question is not now before us, and we express no opinion in regard to it. By section 272, c. 23, Comp. St. 1899, it is provided that “in all cases a creditor having a lien upon the real or personal estate of the deceased by judgment, execution or attachment previous to his death, may proceed to enforce said lien the same as if such death had not occurred.” Section 287 of the same act declares that any creditor whose claim is secured by mortgage or other lien may rely on his security, and shall not be affected by any order of the county court settling an account of an executor or administrator. It is further provided by section 227, c. 23, aforesaid, that: “No action shall be commenced against the executor or administrator except actions to recover the possession of real or personal property, and actions for relief other than for the recovery of money only, and such actions as are permitted in this chapter; nor shall any attachment or execution be issued against the estate of...
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