51 Kan. 30 | Kan. | 1893
The opinion of the court was delivered by
This was an action by J. H. Andrews to recover upon a promissory note for $300, and to foreclose a mortgage executed to secure the same by John E. Morse and his wife on January 16, 1882. The note was payable five years after date, with interest at 8 per cent, per annum, and the interest had been paid thereon up to April 1, 1888. John
Will the failure of the plaintiff to present his mortgage debt as a demand against the estate of the deceased mortgagor within three years prevent the enforcement of his mortgage lien in the district court? It is conceded that no part of the principal debt has been paid, and no ground of invalidity is asserted against the mortgage, nor is any objection made to the enforcement of the lien, except that the debt was not presented to the administrator as a demand against the estate of the deceased mortgagor. This objection is not good. The death of the mortgagor did not impair or affect the lien of the mortgage. It did not place the mortgagee who had a lien in the same position as an unsecured creditor, and remit him to the general assets of the estate to satisfy his lieu. If he looks to the personal assets in the hands of the administrator for payment of his debt or any part of it, he must then present his demand under the statute. If he fails to present it within the three-year period, he can obtain nothing from the general assets, and is limited to the proceeds arising from the sale of the mortgaged property. An equitable claim like the plaintiff's is enforceable in the district court, and is not such a demand as the statute referred to contemplates. Neither the presentation of the claim in the probate court nor the failure to present it precludes the foreclosure of the mortgage lien until the mortgage debt has been paid or extinguished. (Johnson v. Cain, 15 Kas. 537; Graham v. Graham, 38 id. 440; Crooker v. Pearson, 41 id. 410.)
The failure of the plaintiff to present his claim secured by mortgage until after the lapse of three years will prevent him from obtaining a judgment for any deficiency that may remain after exhausting the mortgaged property, but it does not affect his rights to foreclose his mortgage, and to subject the land so mortgaged to the payment of the debt.
The action of the court in refusing to foreclose the mortgage was erroneous, and its judgment must therefore be reversed.