The Devereaux Mortgage Co. v. Huggins

• Decision Date: 05 April 1928
• Docket Number: 5027
• Citation: 46 Idaho 74,266 P. 421
• Parties: THE DEVEREAUX MORTGAGE COMPANY, a Corporation, Appellant, v. GRACE I. HUGGINS, Administratrix of the Estate of JOSIAH E. MILLER, Deceased, EDWARD C. DAVIS, C. M. OBERHOLTZER and T. BAILEY LEE, Trustees, and UTAH STATE NATIONAL BANK, a Corporation, Respondents
• Court: Idaho Supreme Court

266 P. 421

46 Idaho 74

THE DEVEREAUX MORTGAGE COMPANY, a Corporation, Appellant, v. GRACE I. HUGGINS, Administratrix of the Estate of JOSIAH E. MILLER, Deceased, EDWARD C. DAVIS, C. M. OBERHOLTZER and T. BAILEY LEE, Trustees, and UTAH STATE NATIONAL BANK, a Corporation, Respondents

No. 5027

Supreme Court of Idaho

April 5, 1928

EXECUTORS AND ADMINISTRATORS-PRESENTMENT OF CLAIMS AGAINST ESTATES-MORTGAGE FORECLOSURE-DEFICIENCY-NOTICE OF REJECTION-STATUTE OF LIMITATION.

1. Where letter advising claimant of rejection of claim against decedent's estate was written by administratrix's attorney and all parties treated it as notice of administratrix, claimant after acting on it by bringing action cannot take advantage of any defect in notice or failure to give it.

2. Mortgagee's claim against estate of deceased arises on contract and must be presented to administratrix, under C S., sec. 7581, to entitle it to subject other property of estate to payment of deficiency remaining after foreclosure and sale.

3. Mortgagee whose claim against estate of deceased was rejected by administratrix held not entitled to deficiency judgment after foreclosure and sale of mortgaged property, where foreclosure action was commenced eleven months after notice of rejection of claim, under C. S., sec. 7586, providing that holder of claim must bring suit within three months after notice of rejection.

4. Giving of notice of rejection of claim against estate of deceased, under C. S., sec. 7584, is ministerial and not judicial act which may be delegated by administratrix to her attorney.

5. Where mortgagee presented claim against estate of deceased letter signed by administratrix's attorney and notifying claimant's attorney that claim was disallowed by administratrix held to sufficiently comply with C. S., sec 7584, notwithstanding that administratrix's attorney did not sign notice as "attorney for the administratrix."

6. Where decree is affirmed, but respondent's brief was not filed within time provided by supreme court rule 43, costs should not be allowed therefor.

APPEAL from the District Court of the Eleventh Judicial District for Cassia County. Hon. Hugh A. Baker, Judge.

Action to foreclose real estate mortgage. Decree of foreclosure and sale denying judgment for any deficiency. Plaintiff appeals. Affirmed.

Decree affirmed.

Bissell & Bird, for Appellant.

The court erred in permitting the witness Huggins to state that she directed Mr. Lowe to write the letter, Plaintiff's Exhibit "M." (Bacon v. Grosse, 165 Cal. 481, 132 P. 1027, 1031.)

Properly speaking, the present action is not an action to establish a rejected claim, but it is primarily an action to foreclose a mortgage, with the prayer for a judgment that the estate is liable for any deficiency that may remain after the sheriff's sale. As yet the claim against the estate is contingent and "not due," therefore, C. S., sec. 7586, does not apply. (Morse v. Steele, 132 Cal. 456, 64 P. 690.)

Mr. Lowe's letter (Plaintiff's Exhibit "M") is not a sufficient notice to start the bar of sec. 7586 in operation and appellant's action was instituted in season. (C. S., sec. 7584; Holt v. Mickelson, 41 Idaho 694, 242 P. 977.)

S. T. Lowe, for Respondents.

The claim on which the action was brought is required to be presented to the administratrix for rejection or allowance under the provisions of C. S., sec. 7588, before the commencement of an action. (24 C. J., p. 334, sec. 955; In re Huntoon, 174 Cal. 282, 163 P. 52; In re Kibbe, 57 Cal. 407; Marsh v. Dooley, 52 Cal. 232; Sichel v. Carrillo, 42 Cal. 493; Wright v. Ross, 36 Cal. 414.)

The action of giving notice of the rejection of a claim is a ministerial act and can be performed by the attorney for the administratrix. (24 C. J., pp. 374, 782, secs. 1042, 1941, 1942; Cowgill v. Dinwiddie, 98 Cal. 481, 33 P. 439; Miller v. Ewing, 68 Ohio 176, 67 N.E. 292; Gillespie v. Wright, 93 Cal. 169, 28 P. 862.)

The plaintiff and appellant is now estopped to question the sufficiency of the notice of rejection, for

A. It accepted the notice, acted upon the same and instituted an action against the administratrix on the claim, which action was dismissed by a judgment of the court in favor of the defendant and against the appellant.

B. The filing of the former complaint constituted an acceptance of the notice and an election to deem the claim rejected. ( Mix v. Yoakum, 200 Cal. 681, 254 P. 557; Barclay v. Blackinton, 127 Cal. 189, 59 P. 834; Cowgill v. Dinwiddie, supra; Thomas v. Bivin, 34 Wyo. 317, 243 P. 130.)

The court did not err in permitting the witness Huggins to state that she authorized and directed the writing of the letter, Plaintiff's Exhibit "M," for, as a general rule, the fact of agency or the nature and extent of authority may be established by parol, except where such evidence is inadmissible under the best and secondary evidence rule, or under the parol evidence rule, as where the authority is required to be in writing. (2 C. J., p. 944, sec. 707.)

VARIAN, Commissioner. Wm. E. Lee, C. J., and Budge, Givens and Taylor, JJ., concur. T. Bailey Lee, J., disqualified.

OPINION

VARIAN, Commissioner.--

This is an action to foreclose a mortgage on real estate and to recover judgment for any deficiency against respondent Grace I. Huggins, as administratrix of the estate of Josiah E. Miller, deceased.

On January 17, 1917, one Floyd E. Tams and wife mortgaged a farm in Cassia county to appellant, to secure a promissory note for $ 1,100, due January 1, 1922. Thereafter, the mortgagors conveyed the mortgaged lands and premises to one E. R. Alvord, and Alvord and wife conveyed them, in turn, to Josiah E. Miller, by warranty deed dated September 18, 1918. The deed to Alvord and the deed to Miller contained the provision:

"This deed is made subject to a mortgage of eleven hundred and no/100 dollars ($ 1100.00), which said party of the second part assumes and agrees to pay."

Miller died intestate in Cassia county, Idaho, December 8, 1923, and letter of administration duly issued to respondent Grace I. Huggins January 29, 1924, who thereupon qualified as administratrix, and caused notice to creditors to be published, pursuant to order of the probate court, for the time prescribed by statute and the said order of the probate court, requiring all persons having claims against said deceased to exhibit them with the necessary vouchers to S. T. Lowe, attorney for the administratrix, at his office in Burley, Cassia county, Idaho, within ten months after the first publication of said notice. The date of the first publication thereof was January 31, 1924. On December 1, 1924, appellant presented its claim, in writing, verified by one of its attorneys, by delivering the same to S. T. Lowe, attorney for the administratrix respondent, personally at his office as directed by the notice, the claim being based upon the note and mortgage sought to be foreclosed in the present action. Under date of December 2, 1924, the said S. T. Lowe addressed and mailed to appellant's attorneys at Gooding, Idaho, a letter containing the following statement to wit: "You are hereby notified that the claim of the Devereaux Mortgage Company against the estate of Josiah E. Miller, deceased, filed on the 1st day of December, 1924, was this day disallowed by the administratrix of said estate"--and signed his name thereto, "S. T. Lowe."

On December 24, 1924, appellant commenced an action, numbered 2424, against the said administratrix, in the district court of the eleventh judicial district, for Cassia county, for judgment upon said sum of $ 1,100 and interest, and for attorney's fees, alleging the presentation of said claim against the estate of Josiah E. Miller, deceased, the receipt of the letter aforesaid from the attorney for the administratrix disallowing said claim, and praying that it be adjudged a valid claim against said estate, but not asking for a foreclosure of the mortgage. A general demurrer was interposed, which was sustained by the trial judge, and on October 27, 1925, appellant was given twenty days in which to amend its complaint. No amended complaint was filed, and on January 13, 1926, a judgment finally dismissing said action was duly entered. The present action was commenced November 2, 1925, and the claim upon which it is based, as found by the trial judge, was disallowed, as above stated, on December 2, 1924. The court further found that the letter of December 2, 1924, disallowing appellant's claim was written by said attorney for respondent administratrix, at her request and direction, and that appellant's claim against the estate of Josiah E. Miller, deceased, is barred by the provisions of C. S., sec. 7586. The court decreed foreclosure and sale of the mortgaged property to satisfy the amount due appellant but denied any other or further relief.

Appellant contends that the court erred in admitting parol testimony to prove that the letter advising appellant's attorney of the rejection of the claim on December 2, 1924, was written at the...