North Pacific Mortg. Co. v. Sieler

• Citation: 264 P. 4,146 Wash. 530
• Decision Date: 10 February 1928
• Docket Number: 20777-20780.
• Parties: NORTH PACIFIC MORTGAGE CO. v. SIELER et al.
• Court: United States State Supreme Court of Washington

264 P. 4

146 Wash. 530

NORTH PACIFIC MORTGAGE CO. v. SIELER et al.

Nos. 20777-20780.

Supreme Court of Washington, En Banc.

February 10, 1928

Appeal from Superior Court, Grant County; Jeffers, Judge.

Four actions by the North Pacific Mortgage Company against Herbert H. Sieler and others. The cases were consolidated for trial and, from judgments for plaintiff, defendants appeal. Affirmed.

William M. Clapp, of Ephrata, and Herbert H. Sieler, of Chehalis, for appellants.

Montgomery & Bordsen, of Seattle, and E. W. Schwellenbach, of Ephrata for respondent.

MITCHELL J.

Heinrich Sieler, a widower, executed and delivered four promissory notes, each bearing interest, and secured each note by a mortgage on a separate tract of land in this state. He owned the lands in his own separate right. One note for $6,500 was dated May 1, 1914, and matured on May 1, 1919. Another note for $12,000 was dated December 21, 1913, and matured January 1, 1919. Another note for $5,000 was dated December 1, 1914, and matured December 1, 1919. And another note for $5,000 was dated December 1, 1914, and matured December 1, 1919. He made certain payments on each of the notes. He died on October 26, 1921, owning the real property described in the mortgages and leaving a nonintervention will in which he directed that the executor of his will, 'as soon as he has sufficient funds in his hands,' pay funeral expenses, the expenses of the last sickness, and all just debts. He devised and bequeathed his real and personal property to his seven children share and share alike modified by advancements he had made to two of them which were to be taken into account in the settlement the executor was directed to make with the devisees. He appointed his son Herbert H. Sieler executor of his will, and directed that no bonds be required of him, and that the estate be settle without the intervention of any court. The will further provided that the executor 'shall cause this may last will and testament to be proven and admitted to probate; he shall pay my funeral expenses the expenses of my last sickness, my just debts and allowances herein made as soon as may be after said will is admitted to probate; that upon this will being admitted to probate my said executor shall have full power to sell, dispose of, and convey all of, or any part of my estate either real or personal, or both, and it shall not be necessary for him to account to any court for the proceeds of said sale or sales and it shall not be necessary for him to obtain any order of the court to make any sale.'

The will was probated, and Herbert H. Sieler was approved and appointed by the court as executor. He qualified as such, and procured an order declaring the solvency of an estate and directing him to carry out the terms of the will under the law pertaining to the settlement of estates without the intervention of court. In the performance of his duties he made one or more payments on each of the martgages. No creditor's claim for either of the debts was presented to the executor for allowance or rejection. A balance remaining due upon each mortgage indebtedness, the owner and holder, North Pacific Mortgage Company, a corporation, commenced these actions in the early part of October, 1926, to foreclose the mortgages, seeking no deficiency judgment, but looking to the lands only for payment. At the time these actions were commenced, the executor was still acting as such, not having yet completed the performance of his duties under the terms and directions of the will.

The executor as such and other interested parties, including all the devisees under the will, were made parties defendant to the suits. The devisees appeared and contested the foreclosures. The four cases were consolidated for trial and resulted in separate judgments foreclosing the mortgages, from which appeals have been taken by all of the devisees.

The cases on appeal as they appear in this court are numbered 20777, 20778, 20779, and 20780. They have been submitted upon arguments and one set of briefs that cover all four cases. Payments were made on each of the notes and mortgages both before and after the death of Heinrich Sieler at such intervals that the full period of six years did not elapse between any two of the payments nor between the last payment and the commencement of the action. All payments after the death of Heinrich Sieler were made by his executor as executor and without any authority from the devisees personally. Appellants contend that in each case the action was commenced more than six years after the last payment made by Heinrich Sieler; that upon his death on Octover 26, 1921, title to the property vested immediately in them by the terms of the will and section 1366, Rem. Comp. Stat.; that payments made by the executor as such in no way affected their title nor the running of the statute of limitations as to them and their rights in the real property; and that the actions are barred. This presents the only question in the cases.

The four cases are not similar as to the facts. First, we dispose of the case involving the $6,500 mortgage given to secure the note dated May 1, 1914, that matured May 1, 1919. The last payment made by Heinrich Sieler on this indebtedness was May 1, 1920, more than six years before the commencement of the foreclosure action. The executor made substantial payments on this indebtedness November 1, 1922, May 1, 1924, and March 7, 1925.

The case of Anrud v. Scandinavian American Bank, 27 Wash. 16, 67 P. 364, is pressed upon our attention by the appellants. In that case it was held that, in the foreclosure of a mortgage given by an ancestor, his heirs were necessary parties under the statute which provides that the title of an ancestor vests in the heirs immediately on his death. The statute of limitations was in no way involved in that case nor had the administrator of the estate done anything whatever by way of payment or otherwise affecting the enforceability...