North Pacific Mortg. Co. v. Sieler, 20777-20780.

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

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, [146 Wash. 531] 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 [264 P. 5] 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 [146 Wash. 532] 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...