| Haw. | Oct 15, 1872
delivered the decision of the Court, as follows:
The Act in allowing so short a time to present and sue claims, is highly penal in its effects, and must not be extended, beyond its clear and reasonable meaning. 8 Lansing, 27, and cases there cited. Claims against executors or administrators are barred if not presented within the time prescribed; but it does not follow that claims against the land, on contracts made expressly binding on heirs, are barred as against the land itself, or the heirs. A mortgage deed of land conveys to the mortgagee his heirs and assigns, a vested right in the mortgaged land, defeasible only on performance of the condition named in the deed, unless affected by adverse occupancy. This right is not affected by the administrator’s release from obligation to pay the note it is intended to secure.
The act refers to “payment” of claims that are “due.”
The remedy on the mortgage note against the administrator may be lost and the remedy against the land by foreclosure of the mortgage may remain, for they are entirely distinct. We do not think the act was intended to divest mortgagees of their titles or of their remedies against the land by foreclosure. The counsel for the respondents contends for a different construction of the statute. It is true that it refers to all claims, even if they are secured by mortgage, — but as the mortgage and note are two distinct securities, and nothing but payment of the debt will discharge the mortgage, it follows that the mortgage is not barred, as the statute only refers to claims secured by mortgage, and not to the mortgage itself.
Cross on Liens, 12; 5 Pars. Contr. 97, 100; Pars. Merc. Law, 250; 2 Wash. Real prop. (ed. 1868) 173, 225; 2 Redfield’s Wills, 232, n. 4; Potter’s Dwarris on Stat. 164, 472; 1 McAllister, 491; 19 Pick. 537; 6 Gray 439; 8 Met. 89; 29