No. 4701 | Wash. | Aug 7, 1903
The opinion of the court was delivered by
The appellant, plaintiff below, brought this action to foreclose a mortgage upon certain real property situated in King county, Washington. The action was commenced January 23, 1903. Demurrers to the complaint were interposed by the several defendants and sustained by the court, whereupon the appellant declined to plead further, and a judgment of dismissal of the action was entered, from which this appeal is taken. In his complaint the appellant alleged in substance that on March 5, 1881, at Portland, Oregon, one Albert Carr made and delivered to Mary H. Carr his promissory note for $60.00, due six months from date, and secured the same by a mortgage upon the real property above mentioned; that the mortgagor died at Portland, Oregon, within three years from the time of the maturity of the note, and no administration of his estate in that state was ever had; that no administration on his estate was had in this state until December 5, 1902, when the respondent, Hawkins, was appointed such administrator. It was further alleged that no part of the principal or interest
“That the defendants herein named, Charles D. Knight, Cassen Dana Knight, Annie M. Brown, Charles D. Knight, as administrator of the estate of John A. Stafford, deceased, and Annie M. Brown and A. L. Brown, as executrix and executor of the estate of Amos Brown, deceased, Mrs. E. J. Anderson and John Doe Anderson, her husband, have or claim to have some interest or claims upon said premises or some part thereof, which interest or claims, however, if any exist, are wholly subsequent in date and inferior to plaintiff’s mortgage and subject to the lien thereof.”
The prayer is that the appellant have judgment against the estate of Albert Carr, and against the respondent J. E. Hawkins, as administrator thereof, for the amount due on the note, that the mortgage be foreclosed and the property therein described be sold to satisfy the amount found to be so due, and that the claims or interests of the other defendants in the property be adjudged inferior to the lien of the mortgage. The demurrers were sustained on the ground that the action was barred by the statute of limitations, and the correctness of this ruling is the principal question presented in the argument here.
By reference to the dates above given it will be noticed that over twenty years had elapsed between the maturity of the note and the time any proceeding was commenced looking to its enforcement. It is the contention of the respondents that the right to enforce it after this lapse of time is barred both by the general statute of limitations,
“If a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his representatives after the' expiration of that time, and within one year after the issuing of letters testamentary or of administration.”
The contention of the respondents, in so far as it relates to the right to foreclose the mortgage, or the right to enforce the payment of the debt out of any of the real property of the deceased debtor, we think is the correct one. A mortgage, while it is but a mere lien, and is but ancillary to the debt which it is given to secure, is capable of enforcement against the mortgaged property, though the mortgagor be deceased, in a direct suit brought for that purpose against the heirs of the mortgagor, or, rather, the person or persons in whom the legal title to the mortgaged property is vested at the time of the foreclosure; that is, it is not necessary, in order that the mortgaged property may be subjected to the payment of the debt it is pledged to secure, that a probate procedure be instituted, and the debt be presented to the executor or administrator, before a suit can be instituted to foreclose the mortgage. Scammon v. Ward, 1 Wash. 179" court="Wash." date_filed="1890-02-28" href="https://app.midpage.ai/document/scammon-v-ward-4718124?utm_source=webapp" opinion_id="4718124">1 Wash. 179 (23 Pac. 439); Reed v.
But, notwithstanding the right to foreclose the mortgage or collect the debt out of the real property of the deceased debtor is barred by the statute, the creditor still has, we think, the right to have his claim allowed by the administrator to he paid, as other claims of the estate must he paid, out of the personal property in the hands of the administrator belonging to the estate. The statute destroys the lien of the debt at the end of six years upon the deceased debtor’s real property, hut keeps it alive in
The appellant contends, however, that these questions cannot be raised by the respondents other than the administrator. He argues that, inasmuch as the only reference made to such respondents is by the paragraph above quoted in full, it does not appear on the face of the complaint that 'they have any such interest in the premises as will entitle them to question the appellant’s right to foreclose; that they must first set up a superior title in themselves before they can question the sufficiency of his complaint. But it is a sufficient answer to this objection to say that the appellánt has made them parties to the action, and sought relief against them. This is a confes-’ sion that they are proper parties, and they have the right to insist that the appellant set up a valid cause of action in himself before they are called upon to plead their own title.
It follows, therefore, that the judgment appealed from must be affirmed as to all of the defendants except the administrator ; as to him it must be reversed, and remanded with instructions to allow the claim of the appellant as one of the acknowledged debts of the estate, to be paid in due course of administration. The remittitur will go accordingly.
Hadley, Andebs, Dunbab and Mount, JJ., concur.