Stanton v. Gibbins

• Court: Kansas Court of Appeals
• Writing for the Court: ELLISON, J.
• Citation: Stanton v. Gibbins, 103 Mo. App. 264, 77 S.W. 95 (Kan. App. 1903)
• Decision Date: 23 November 1903
• Parties: JOHN L. STANTON, Administrator, etc., Appellant, v. EDWARD R. GIBBINS et al., Respondents

77 S.W. 95

103 Mo.App. 264

JOHN L. STANTON, Administrator, etc., Appellant, v. EDWARD R. GIBBINS et al., Respondents

Court of Appeals of Missouri, Kansas City

November 23, 1903

Appeal from Andrew Circuit Court.--Hon. A. D. Burnes, Judge.

AFFIRMED.

Judgment affirmed.

James M. Rea for appellant.

(1) In this and similar cases the administrator, and he alone, is the proper party to collect, preserve, administer and distribute the assets of estates of deceased persons notwithstanding agreements to the contrary made by a debtor of the estate with the heirs or distributees thereof. Bartlett v. Hyde, 3 Mo. 490; State ex rel. v Moore, 18 Mo.App. 406; McMillan v. Wacker, 57 Mo.App. 220; Jacobs v. Maloney, 64 Mo.App. 270. (2) The note in suit is not barred by limitations. The last indorsement of payment thereon before the death of Lizzie Calvert is dated April 2, 1885, and she died the holder thereof on April 18, 1889. So, then, but four years and sixteen days had elapsed or run at her death. Upon her death limitation ceased until the appointment of her administrator because until then no one was legally qualified to sue. The plaintiff herein was so appointed on August 3, 1901, filed his petition on July 31, 1902, and summons was issued thereon on the day of filing the petition. Thus eleven months and twenty-seven days elapsed or run from the appointment of plaintiff as administrator until the suit was commenced, which, added to the four years and sixteen days that had run in Lizzie's lifetime, makes five years and thirteen days of the general statute of ten years that have run on the note in suit since Lizzie's death. Polk v. Allen, 19 Mo. 467; Dillon v. Bates, 39 Mo. 292; State v. Hilman, 7 Mo.App. 420; Ayers v. Donnell, 57 Mo. 396.

P. Mercer for respondents.

Submitted a lengthy argument.

OPINION

ELLISON, J.

Defendants on March 12, 1872, executed a note for $ 300, together with a mortgage to secure it, to Elizabeth Calvert. The note was due in one year. A payment of $ 100 was made on the note April 2, 1885. Elizabeth Calvert died April 18, 1889. Plaintiff was appointed administrator of her estate August 3, 1901, and this action was begun on July 31, 1902. The statute of limitations was made a defense and the trial court found for defendants.

Prior to 1891, an action to foreclose a mortgage on real estate might have been maintained if brought any time within twenty years notwithstanding the obligation secured was barred earlier. In that year the Legislature enacted the following statute, being sections 4276 and 4277, Revised Statutes 1899, viz:

"Sec. 4276. No suit, action or proceeding under power of sale to foreclose any mortgage or deed of trust, executed hereafter to secure any obligation to pay money or property, shall be had or maintained after such obligation has been barred by the statute of limitations of this State.

"Sec. 4277. Nor shall any such suit be had or maintained to foreclose any such mortgage or deed of trust heretofore executed to secure any such obligation after the expiration of two years after the passage of this act."

The first of these sections provides that mortgages or deeds of trust executed "hereafter," that is, after the enactment of the statute shall be barred at the same time with the obligation which it secures. The second section (as presently explained) gives two years after the enactment of the statute in which to institute suit to foreclose a mortgage or deed of trust which had been executed before such enactment. The mortgage here in question was executed prior to the enactment of the statute referred to and therefore it came under the last section giving a period of two years' limitation, and, the note itself being barred and more than two years since the statute took effect having elapsed prior to bringing this action, it is barred. The object of the statute was to provide that the life of mortgages and deeds of trust thereafter executed should continue as long as the life of the note lasted, but no longer. And that mortgages and deeds of trust executed before the statute, should end within two years after the...