34 Iowa 91 | Iowa | 1871
The petition shows that the judgment against defendant’s intestate was rendered in 1857. That the intestate died in 1858, and administration was then granted on his estate and notice given. This action was not commenced until January 3, 1870, about twelve years after the rendition of the judgment, and almost the same length of time after notice of administration granted on intestate’s estate. The petition also alleges that the judgment had never been filed as a claim against the estate, and states certain facts as reasons why the same had not been so filed, and prays that the lien of the judgment be revived against the lands of which Reeves died seized.
The first ground of the demurrer is, that the petition shows that the judgment has never, been filed as a claim against the estate, and that the statute bars the action, more than eleven years having elapsed after notice of administration.
Upon the most careful investigation and mature deliberation, we are constrained to the opinion that this objection must be sustained, and that our former conclusion was incorrect. While a judgment may be enforced against real estate on which it is a lien, without being filed as a claim against the estate of the deceased owner of the land, yet this must be done while the judgment lien exists.
The plaintiff, therefore, could have enforced his judgment against the real estate on which it was a lien, at any time within ten years, after its rendition unaffected by the death of the judgment creditor.
But he suffered this lien to expire before issuing execution, or making any effort to enforce the judgment. After the expiration of the lien, the plaintiff had no special claim to have his judgment satisfied out of the real estate on which it' had been a lien. He could, then, only seek payment of his judgment from the personal assets in the hands of the administrator, in which case the real estate might, in the event of the inadequacy of the personal assets, be subjected to payment thereof. Rev., § 2374. But, to entitle one holding a claim against an estate of a deceased person, to payment from the personal assets, he must pursue the method prescribed by the law for that purpose, and it is enacted by section 2405, that “ all claims of the fourth class (the one to which plaintiff’s claim belongs), not filed and proved within one year and a half after notice of administration granted, are forever barred unless the claim- is pending in the district, or supreme court, or unless peculiar circumstances entitle the claimant to equitable relief.”
Unsatisfied judgments-rendered prior to the death of the decedent are required to be entered in the catalogue of claims, and so much thereof allowed as the plaintiff will
In our former decision the opinion was expressed that the lien of a judgment may be revived by an ordinary action at any time within twenty years. This period is fixed by the general statute of limitations, as that for the bringing of actions on judgments of a court of record. Rev., § 2740, subd. 5. And such is its general effect. But section 2405 forms an exception to this general rule. These provisions of the statute must be considered together, and force and effect given to each. If we hold that plaintiff has, in all cases, twenty years in which to bring an action and revive his judgment, we ignore section 2405 altogether. On the other hand we can give force and effect to the latter without impairing the general rule by the construction above given.
The principal facts relied on for this purpose are, that
We are clearly of opinion that these are insufficient. Whether there were such hooks kept in the county judge’s office could make no difference. A transcript of the judgment, properly verified, could have been filed at any time after notice of the administrator’s appointment was given. This was all that was necessary. The promise of the prior administrator was no excuse for the delay after the appointment of the defendant, for so many years, to enforce the judgment, and that the estate is yet unsettled, is not, of itself, a reason for granting relief against the delay. Did the facts but„ show, in a fair and reasonable degree, the plaintiff to be entitled to equitable relief, we should not hesitate to award it to him, since it is undisputed that the judgment has never been fully paid, but, giving them the most favorable construction, it is plain that he has been grossly negligent, and that had he been reasonably diligent he could long since have enforced payment of his judgment.
The judgment will therefore be reversed and remanded with leave to the plaintiff to amend his petition if he shall be so advised.
Reversed.