17 Utah 85 | Utah | 1898
The complaint in this case was filed October 21, 1897, asking that the plaintiff be subrogated to the rights of Ann North Leaker, under a mortgage which appellant paid to her in order to prevent a foreclosure thereof. The mortgage, at the time of this payment, was a proper claim upon the land and against the estate of the deceased. The land covered by the mortgage had, previous to the settlement of the estate, been conveyed to the appellant by the sole legatee under the will, under the representations that there were no debts except the mortgage in question, and that the estate was solvent. After appellant had paid the mortgage, a claim was allowed in favor of the brother of the deceased, which absorbed the entire estate, and left the appellant without anything to reimburse him for money paid to satisfy the mortgage. A demurrer was interposed to the complaint by the administrator, and sustained. The complaint was dismissed, and a judgment
1. In the argument of this case counsel have discussed the question of the application of the statute of limitations as a bar to recovery. No plea of the statute of limitations was set up in the answer or relied upon by any plea or demurrer thereto. Under section 4121, Comp. Laws Utah 1888, when a claim is presented against an estate for allowance in a case like this, the time within which claims must be presented is limited to 10 months after the first publication of notice to creditors. Under section 4123, Comp. Laws Utah 1888, unless such claim be presented, it is. barred, unless it appear that the claimant had no notice,, or was out of the state, etc. Section 4130, Comp. Laws Utah 1888, provides that “no holder of any claim against an estate shall maintain any action thereon unless the claim is first presented to the executor or administrator,, except in the following case: An action may be brought by any holder of a mortgage or lien to enforce the same against the property of the estate subject thereto.” Sec tion 4129, Comp. Laws Utah 1888, provides that “no claim must be allowed by the executor or administrator, or the judge of the probate court, which is barred by the statute of limitations. When a claim is presented to the judge for his allowance, he may, in his discretion, examine the claimant and others on oath, and hear any legal evidence touching the validity of the claim.”
These provisions of the statute have reference to the presentation and allowance of claims against the estate by and through the agency of the administrator and the probate court, and, under section 4130, the holder of a mortgage or lien may have recourse against the property subject thereto, without such presentation or allowance
The notes given by the testator were dated September 30, 1890. One, for $2,500, was due one year after date, and the other, for $2,500, was due two years after date. The testator was out of the state one year. The appellant paid these notes, and the mortgage secured by them, August 1, 1895. The testator died November 18, 1893. Mr. Bailey was appointed administrator with the will annexed, February 1, 1894, and 10 months was allowed for the presentation of claims against the estate, computed from February 22, 1894, so that the time for the presentation of claims, without special application, expired December 22, 1894. The claim in question was not presented to the administrator or court for allowance until October 12, 1897, and this suit was brought October 21, 1897, so that, under these special provisions of the statute, the claim was. barred, as a proper claim for allowance against the estate, before it was presented for allowance, unless the failure' of the administrator to plead the statute of limitations removed the bar and rendered the estate liable.
We are of the opinion that, under section 4129, the claim was barred as a claim for allowance by the administrator against the estate, and that it was the duty of the-administrator to plead the statute against the allowance-of such claim, and that his failure to do so would not remove the statutory bar. The claim, being barred by the-statute for allowance against the estate, must be considered no debt for allowance under that statute. Under such circumstances there was no legal obligation to allow it, but, on the contrary, the legal duty to set up the bar of the-statute rested upon the administrator, under the provisions of section 4129. Upon his failure to plead it, the
2. Under section 4130, above referred to, it was not necessary for' the claimant for subrogation under the mortgage to present his claim for allowance to the probate court. He had a right to bring this action to be subro-gated to the rights of Ann North Leaker, under her mortgage, by virtue of his alleged equitable claim and lien, without invoking the aid of the administrator or the probate court. Under section 3143, Comp. Laws Utah 1888, actions upon a contract, obligation, or liability,' founded upon an instrument in writing, must be commenced within four years. Under this section, if the defendant desired to interpose the statutory bar, it was his duty to plead the statute. This he did not do.
In Spanish Fork City v. Hopper, 7 Utah 235, this court held that, “in order to plead the statute, the answer should have stated and pleaded the section of the Code of Civil Procedure relied upon, or should have stated the fact's constituting the defense.” This is required by section 3244, Comp. Laws Utah 1888. Tunnel Co. v. Stranahan, 31 Cal. 387; Howell v. Rodgers, 47 Cal 291; Caulfield v. Sanders, 17 Cal. 569; Thomas v. Glendinning, 13 Utah 47-57; Farwell v. Jackson, 28 Cal. 105.
Under this general section of the statute, if the defendant desired to show that the action was barred, he should have pleaded the statute. This defense of the statute of limitations may be presented by demurrer, when it appears from the complaint that the statutory time has elapsed. Mason v. Cronise, 20 Cal. 211. But the statute of limitations cannot be raised under the demurrer that
3. It appears that appellant’s note of $4,700 was due November 19, 1890. The deceased bad been out of tbe state one year. Tbe note would not become barred until November 19, 1895. Appellant surrendered this note, and took a conveyance of land covered by tbe Leaker mortgage, December 15, 1894. He paid tbe Leaker mortgage, August 1, 1895, before either of tbe notes surrendered or paid was barred, as a lien upon tbe land, under tbe general statute referred to. Appellant paid value for tbe discharge of tbe Leaker mortgage, and it was not barred when it was paid. Section 3150, Comp. Laws Utah 1888, provides that “an action for relief not heretofore provided for, must be commenced within four years after tbe cause of action shall have accrued.” This action to obtain a subrogation to tbe rights of Mrs. Leaker, to reimburse tbe appellant for money be was compelled to pay upon tbe debt of tbe estate to protect bis own interest, is an equitable action, not necessarily founded on a contract or written instrument, but was resorted to for tbe purpose of relieving a meritorious creditor from an unjust burden, who might otherwise be subjected to loss, by bis funds being applied to another’s debt; and, because of tbe peculiar rights and remedies, tbe suit does not come strictly within either of the restrictive provisions of the statute of limitations, except those of section 3150, above quoted. This section is doubtless intended to deal with the time in which certain complaints in equity may be filed, and “applies to all suits in equity not strictly of concurrent cognizance in law and equity.” Section 3150, Comp. Laws Utah, is the same as section 343 of the Code of Civil Procedure of California,
4. From the facts stated in the complaint, it appears that appellant had a claim against the Boggs estate of over $4,700. The only available piece of land left by the deceased was a lot incumbered for over $4,000, to Ann North Leaker, for the purchase price. On the 27th day of May, 1895, and more than five months after the time for the presentation of claims against the estate had expired, S. L. Boggs, a brother of the deceased, residing in Pennsylvania, presented a claim against the estate at Salt Lake City, for over $5,400. On the 15th day of December, 1894, Sarah G. Boggs, widow and sole devisee of the deceased, came to apellant in Denver, and desired a settlement of his note, amounting to $4,700, against the estate. She represented to appellant that she was the sole devisee by will in the Boggs estate; that, except the note held by appellant, there were no claims against the estate, except those secured upon certain land that would more thap doubly pay them; that the claim of Mrs. Leaker
Upon a consideration of the questions raised by the demurrer, we are satisfied that the allegation of the complaint was sufficient to show that the appellant relied upon and believed the representations of Mrs. Boggs, and surrendered his securities against the estate in reliance thereon, and that the estate was solvent and able to pay the Leaker mortgage, and that the appellant was not a mere volunteer, but directly interested to the amount of the Leaker mortgage, which should be paid out of the land covered by it belonging to the estate.
I am also of the opinion that the complaint states facts sufficient to constitute a cause of action. Appellant was led to believe that the estate was solvent, and relied upon Mrs. Boggs’ statements, as sole legatee, that she could and would convey a fee-simple interest in the lot covered by the Leaker mortgage. He was led to believe that no claim such as was presented by the brother of the deceased, and allowed after the time for the presentation of claims had expired, existed, or that any claim would consume the entire estate. Had appellant not paid the Leaker mortgage, it would have been foreclosed, and the land lost to the estate. The payment of the mortgage resulted in a benefit to the estate and an injury to no one. If subro-gation is allowed, no one is injured by it, as the estate and the heirs are no worse off. If appellant is allowed to be subrogated to the rights and position -occupied by Mrs. Leaker, no one is injured, and justice is meted out to the parties. The facts, to my mind, present a clear case calling for the application of the doctrine of subrogation, which is not alone founded upon contract, either express or implied, but upon principles of equity and justice, in
While counsel ¡for-the-respondents have presented in their brief an able-discussion-, of the law involved in this controversy, which. the- court: duly, appreciates, yet this overpowering equity presented-Imthe claim of the appellant impels me to the c o nel úsi'ó ner e a oh éd. But my associates, while agreeing with ¡the.'writér:ofrthis opinion upon the first and second propositions.-laid--down.therein, and with reference to the application..of-the-.statute of limitations- thereto,when the same'- was not ;plékdéd;únd that the order and decree sustaining'',the'.demurrereand-dismissing the complaint should be set aside-, andiivacate'd,and that a new trial be allowed, disagree with ¡the,: writer, of this opinion in so far as the opinion holds that- the-statute of limitations as to the lien obtained by the.-payment of the notes secured by the mortgage to Mrs. Léakér .began to run at the time of such payment. The majority of the court are of the opinion that the plaintiff secured -the
