Tucker v. First Nat. Bank

• Citation: 124 So. 464,98 Fla. 914
• Parties: TUCKER et al. v. FIRST NAT. BANK OF LAKELAND.
• Decision Date: 18 November 1929
• Court: United States State Supreme Court of Florida

124 So. 464

98 Fla. 914

TUCKER et al. v. FIRST NAT. BANK OF LAKELAND.

Florida Supreme Court, Division B.

November 18, 1929

Suit by the First National Bank of Lakeland against McKendree Tucker as executor of the estate of Eppes Tucker, Sr., deceased, and others. Decree for complainant, and defendants appeal.

Affirmed.

Syllabus by the Court

SYLLABUS

Payment by mortgagor's executor of interest on unmatured mortgage notes waives formal presentation of mortgage and unpaid notes as demands against estate (Comp. Gen. Laws 1927, §§ 5597 5599, 5600, 5611). Where a mortgagor of real estate dies after paying one of the mortgage notes but before the other notes mature, and the executor of the deceased mortgagor pays interest on the unmatured notes before the statutes of nonclaim, sections 3732, 3739, Rev. Gen. Stats. 1920 (sections 5597, 5611, Compiled Gen. Laws 1927), or chapter 10119, Acts 1925 (sections 5597, 5599, Compiled Gen. Laws 1927), bar the payment of such notes, such payment of interest by the executor amounts to a waiver of the formal presentation of the mortgage and unpaid notes as claims or demands against the deceased mortgagor's estate under chapter 10119, Acts 1925 (sections 5599, 5600, Comp. Gen Laws 1927). See subsequent statute, section 3, c. 11994, Acts 1927.

Appeal from Circuit Court, Polk County; H. C. Petteway, judge.

COUNSEL

H. E. Oxford, of Lakeland, for appellants.

Bryant & Trantham, of Lakeland, for appellee.

OPINION

WHITFIELD P.J.

In proceedings to enforce a mortgage lien upon real estate, brought by the assignee of the mortgagee against the executor, the widow, and the heirs of Eppes Tucker, Sr., the mortgagor, who died May 1, 1926, it is alleged in an amended bill of complaint that 'notice to creditors was filed on May 7, 1926, requiring creditors to present such claims as they had against the estate of Eppes Tucker, Sr., deceased, on or before one year from that date, and your Orator avers that its note and mortgage was not due until October 30th, 1927, and that it did not file a proof of claim of its note and mortgage aforesaid, but on November 26, 1926, McKendree Tucker, Executor of the last Will and Testament of Eppes Tucker, Sr., deceased, paid interest in the amount of $484.80 upon the note and mortgage herein set out, and your Orator shows unto your Honors that said interest was paid by the said Executor to your Orator during the time in which the Proof of Claims should have been filed, and thereupon your Orator avers that the said Executor, or any of the other Defendants in this suit, are estopped from pleading the statute of limitations by reason of the Proof of Claim of your Orator's note and mortgage not having been filed in the administration of the estate of Eppes Tucker, Sr., deceased.'

A plea avers that the assignee of the mortgagee, 'the First National Bank, did not file nor has it yet filed; did not present nor has it yet presented, to the County Judge, at his office of the Court House of Polk County, Florida, in accordance with the law, any claim or demand against the Estate of Eppes Tucker, Sr., or against the Executor of said Estate, based on said indebtedness now sought to be collected in this suit and said mortgage is barred under the Statutes and cannot now be foreclosed. That more than twelve months elapsed, prior to the filing of this suit, since the publication of said notice, as provided by law, and said claim is now barred by the Statute of Limitations respecting said claim against said Estate.'

The court overruled the plea, and upon further proceedings a final decree was rendered in favor of the complainant; the court finding 'that on October 30, 1925, Eppes Tucker, Sr., mortgaged and property involved in this litigation to Lonnie C. Black and wife for $12,120.00, evidenced by two promissory notes of $6,060.00 each, payable on or before one and two years after date, respectively, and bearing 8% interest per annum, payable annually, from date until paid. The first note was paid, and Lonnie C. Black and wife, assigned the second note and the mortgage securing the same to the first National Bank of Lakeland, the Complainant herein. Eppes Tucker, Sr., died on May 1st, 1926, leaving a Will, which was duly probated in the Probate Court of Polk County, same being admitted to Probate on May 7, 1926. On May 7, 1926, a Notice to Creditors was issued, and the said Notice was published as provided by law once a week for eight consecutive weeks, notifying all persons having claims against the estate of Eppes Tucker, Sr., deceased, to present the same to the County Judge at his office in the Courthouse at Bartow, Polk County, Florida, within twelve months from the time of the first publication of said Notice. The First National Bank did not file its proof of claim during the twelve months within which its Proof of Claim should have been filed, but during the said twelve months, to wit, on November 26, 1926, McKendree Tucker, the duly qualified Executor of the last Will and Testament of Eppes Tucker, Sr., deceased, paid interest in the amount of $484.80 upon the note and mortgage held by the First National Bank of Lakeland. There is no dispute at to the facts in this case, and the only point argued before the Court was whether or not the payment of interest by the Executor of the last Will and Testament of Eppes Tucker, Sr., deceased, during the twelve months in which Proof of Claim should have been filed, was sufficient to keep the lien of Complainant's mortgage and note alive.'

Defendants appealed, and assign as errors the overruling of the plea and the consequent entry of final decree for the complainant. Sections 3732 and 3739, Revised General Statutes 1920, are as follows:

'Executors and administrators on taking out letters testamentary or letters of administration, shall cause an advertisement to be published once a week for the space of eight weeks in some newspaper printed in the county wherein said letters testamentary or of administration shall have been granted, calling upon creditors, legatees, distributees and all persons having claims or demands against the estate to present them within two years. Upon the expiration of said advertisement proof of the publication thereof as aforesaid shall be filed with the county judge and recorded by him.'

'All debts and demands of whatsoever nature against the estate of any testator or intestate which shall not be presented to the executor or administrator within the said two years after the first publication of the notice provided for by Section 3732, shall forever afterward be barred; saving, however, to infants, persons of unsound mind, imprisoned, or beyond the limits of the United States, in the military and naval service thereof during war, the same term of two years after their respective disabilities shall be removed. This section shall not apply to legatees, distributees or heirs-at-law.' See section 5611, Compiled General Laws 1927.

The following statute, approved June 4, 1925, was in force at...