Wasatch Livestock Loan Co. v. Nielson
| Decision Date | 07 April 1936 |
| Docket Number | 5614 |
| Citation | 56 P.2d 613,90 Utah 307 |
| Court | Utah Supreme Court |
| Parties | WASATCH LIVESTOCK LOAN CO. v. NIELSON et al |
Opinion amending this opinion and denying rehearing in 90 Utah 331, 61 P.2d 616.
Appeal from District Court, Third District, Salt Lake County; Oscar W. McConkie, Judge.
Suit by the Wasatch Livestock Loan Company against S. M. Nielson administrator of the estate of William L. Madsen, deceased and Hilma N. Becker, individually, and as executrix of the estate of Mary J. Phillips, deceased, and others. From an adverse judgment, the plaintiff and defendant Hilma N Becker, individually and as executrix of the estate of Mary J. Phillips, deceased, appeal.
Remanded with directions to amend and affirmed as amended.
Thomas & Thomas, of Salt Lake City, for appellant Wasatch Livestock Loan Co.
Larson & Larson, of Manti, for appellant Hilma N. Becker.
Christenson, Straw & Christenson, of Provo, and J. A. Hougaard and E. A. Britsch, both of Manti, for respondent.
WOLFE, J., being disqualified, did not participate.
This appeal is prosecuted by the Wasatch Livestock Loan Company, hereinafter referred to as the loan company, from a judgment in which the court below adjudged and decreed that a mortgage held by it is inferior to claims of general creditors of William L. Madsen, deceased. The mortgage held by the loan company was executed by William L. Madsen and his wife. It covers a band of sheep. Claims of creditors were, at the time the loan company brought suit to foreclose its mortgage, approved by S. M. Nielson, administrator of the estate of William L. Madsen, deceased, and by the judge of the probate court where the Madsen estate was being probated. The mortgage which the loan company brought suit to foreclose had not been renewed as required by law. Defendant Nielson, as administrator of the Madsen estate, resisted the foreclosure of the mortgage because of the failure of the loan company to file a renewal affidavit within the time fixed by law.
Hilma N. Becker, in her individual capacity, and as administratrix of the estate of Mary J. Phillips, deceased, also appeals. She complains of the judgment because the court below failed to sustain her claim that she individually and as administratrix of the estate of Mary J. Phillips, deceased, is the owner, free from any and all liens of the parties to this litigation, and entitled to the immediate possession of some of the sheep which the loan company claims are covered by its mortgage. There is no dispute in the evidence touching the controversy between the loan company and defendant S. M. Nielson, administrator. These parties divide solely upon questions of law. The facts which bear upon their rights are as follows: On June 1, 1928, William L. Madsen and his wife executed a note in favor of the Wasatch Livestock Loan Company for the principal sum of $ 15,000. The note was payable one year after date. As security for the payment of the note, Madsen and wife on the same date as the note was executed, also executed a mortgage on 2,565 head of Rambouillet ewes. The mortgage was acknowledged and verified as required by law. It was filed for record on July 3, 1928, in the office of the county recorder of San Pete county, Utah, which is the county where the mortgagors resided at the time it was executed and continued to so reside until the death of William L. Madsen. The mortgage so executed and filed contains a provision that it is given as security for the payment of the $ 15,000 note of even date therewith, and also to secure any and all additional loans and advances which the mortgagee might thereafter make to the mortgagors in connection with the care of the sheep covered by the mortgage, together with any and all renewals or extensions of such note or notes or advances. William L. Madsen died on January 27, 1931. On or about February 21 following, defendant S. M. Nielson was appointed and became administrator of the Madsen estate. The loan company brought suit to foreclose its mortgage by filing its complaint on August 29, 1931. At no time prior to October 4, 1931, did the loan company have possession of the sheep covered by its mortgage. Madsen retained possession of the sheep until his death. After becoming administrator, defendant S. M. Nielson took possession of the sheep and retained such possession until October 4, 1931. On or about May 13, 1931, the loan company advanced to defendant S. M. Nielson, as administrator, the sum of $ 500. Nielson executed and delivered to the loan company a note payable June 1, 1931, as evidence of the loan. The note recited that it was secured by the mortgage theretofore given by Madsen and his wife to the loan company. On August 18, 1931, a further loan of $ 200 was made by the loan company to S. M. Nielson, as administrator. The money so loaned to S. M. Nielson was used to pay the expenses of the care and keep of the sheep involved in this controversy.
Pursuant to a stipulation entered into between the parties to this litigation, and on October 4, 1931, the sheep in controversy were delivered to the loan company. Thereafter and on November 6, 1931, pursuant to a further stipulation between the parties herein the sheep were, by order of court, sold for $ 13,676 in cash, which cash was delivered to the loan company to be retained by it pending the termination of this litigation. There is owing on the loan company's note the sum of $ 13,805.50 with interest thereon at 7 1/2 per cent. per annum from and after December 1, 1930. The stipulation entered into between the parties contains a provision that the relative rights of the parties in and to the sheep, and the proceeds derived from the sale thereof, shall not be affected by such stipulation or by the sale of the sheep pursuant thereto. After Mr. Nielson became administrator of the Madsen estate, he caused notice to creditors to be published as required by law. The time for presenting claims against the Madsen estate expired July 18, 1931. The loan company did not present any claim against the estate. On August 27, 1931, the loan company filed for recordation in the office of the county recorder of San Pete county, Utah, an affidavit exhibiting its interest as mortgagee in and to the sheep covered by the mortgage. The affidavit was recorded in a book of mortgages in the office of the county recorder of San Pete county, Utah. Neither the renewal affidavit nor a copy thereof was attached to the original mortgage which the loan company seeks to foreclose in this suit. Within the time allowed by law, claims of general creditors of William L. Madsen, deceased, were presented to the administrator of his estate in the principal sum of $ 14,898.63, together with interest, making a total of claims presented and approved for principal and interest in a sum in excess of $ 15,000. Such claims were approved by defendant S. M. Nielson, administrator, on and prior to August 3, 1931. All of such claims were on August 5, 1931, approved by the judge of the probate court in which the Madsen estate was being probated. Upon being so approved the claims were filed in that proceeding. The inventory and appraisement filed in the Madsen estate shows the total appraised value thereof was $ 33,619.31. All of the property of the estate excepting some household furniture and farming implements of the approximate value of $ 1,000 had been mortgaged by Mr. Madsen, the deceased, during his lifetime. Prior to the time of the trial of this cause, the mortgages had been foreclosed and all of the property covered by the mortgages sold under foreclosure proceedings. The amount received from the various foreclosure sales were insufficient to pay the amount of the mortgages. The estate is thus insolvent. Without recourse to the money derived from the sale of the sheep in question, there is not sufficient property of the estate to pay the costs of administration and nothing with which to satisfy approved claims of general creditors.
Without in any way questioning the facts thus recited, appellant loan company contends that its mortgage is superior to the approved claims of the general creditors of William L. Madsen, deceased, and that the money derived from the sale of the sheep should be applied on the payment of its mortgage. Defendant S. M. Nielson, administrator of the Madsen estate, contends that the money derived from the sale of the sheep should be applied to the payment of the costs of administration of the estate and to the payment of the approved claims of the general creditors of the estate. That is the sole question which divides the loan company and the defendant Nielson, as administrator of the Madsen estate.
Our statutory law affecting chattel mortgages provides:
"(3) The mortgage, or a copy thereof certified to be such by a notary public or other officer authorized to take acknowledgments, is filed, but not for recordation, in the office of the recorder of the county where the mortgagor resides, or, in case he is a nonresident of this state, in the office of the recorder of the county or counties where the property may be at the time of the execution of the mortgage." R. S. Utah 1933, 13-0-1.
...
To continue reading
Request your trial
-
Barber v. Reina Nash Motor Co.
...558, 43 A. 179; Gilfillan's Adm'r v. Bixby, 100 Vt. 468, 139 A. 250; Hansen v. Daniels, 73 Utah 142, 272 P. 941; Wasatch Livestock Loan Co. v. Nielson, 90 Utah 307, 56 P.2d 613, but see Volker Lumber Co. v. Utah & Oregon Lumber Co., 45 Utah 603, 148 P. 365; see also First Nat. Bank v. Haver......
-
Nebeker v. Summit Cnty.
...thus would not have been able to collect against the insolvent Rhineer estate in any event. See generally Wasatch Livestock Loan Co. v. Nielson, 90 Utah 307, 56 P.2d 613, 617 (1936) (“One who was a mere general creditor before the death remains such after it. His position with respect to ot......
-
Nebeker v. Summit Cnty.
...and thus would not have been able to collect against the insolvent Rhineer estate in any event. See generally Wasatch Livestock Loan Co. v. Nielson, 56 P.2d 613, 617 (Utah 1936) ("One who was a mere general creditor before the death remains such after it. His position with respect to other ......
-
Raney v. Riedy, 8849
...are in conflict. They are collected in an annotation in 91 ALR 299. To the cases there considered, the case of Wasatch Livestock Loan Co. v. Nielson, 90 Utah 307, 56 P2d 613, should be added. That case exemplifies the majority view that an executor or administrator of an insolvent estate ma......