Jones v. Rich

| Mont. | Nov 15, 1897

Buck, J.

Section 2603 Code of Civil Procedure, 1895, requires all claims arising from contracts to be presented to an administrator within a certain time. It is provided, however, in said section, “that nothing in this title contained shall be so construed as to prohibit the right, or limit the time, of foreclosure of mortgages upon real property of de cedents, whether heretofore or hereafter executed, but every such mortgage may be foreclosed within the time and in the manner prescribed by the provisions of this code, other than those of this title, except that no balance of the debt secured by such mortgage remaining unpaid after foreclosure, shall be a claim against the estate, unless such* debt was presented as required by the provisions of this title.”

Section 2601 requires that a claim must be “supported by the affidavit of the claimant or someone in his behalf, that the amount is justly due, that no payments have been made thereon which are not credited, ’ ’ etc. It also provides that 4 ‘the executor or administrator may also require satisfactory vouchers or proofs to be produced in support of the claim.” Section 2606 provides for the action to be taken by the administrator upon a claim presented to him, and that, if he neglects or refuses to indorse on the claim an allowance or the rejection thereof for 10 days after the claim has been presented to him, such refusal or neglect may be deemed equivalent to a rejection on the tenth day.

Section 2607 contains provisions as to a copy and description of the claim secured by a mortgage when presented.

Section 2610 provides that “no holder of any claim against an estate shall maintain an 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, where all recourse against other property of the estate is expressly waived in the complaint; but no counsel fees shall be recovered in such action unless such claim be so presented. ’ ’

It appears from the complaint that plaintiff sought to foreclose his mortgage, and, in case the amount realized from the sale of the-property embraced therein was insufficient, to obtain a deficiency .judgment. If there had been no presentation of his claim, and he had proceeded under Section 2610, he should, of course, have alleged a waiver of any recourse against property of the decedent other than that embraced in his mortgage.

Does the complaint state a cause of action ? Section 2603, in express terms, authorizes the foreclosure of ■ a mortgage, whether the claim secured thereby has been presented to the administrator .or not. It says that nothing in the title (namely, title 12, ‘ Nr b bate Proceedings”) shall prohibit said right. In the case of nonpresentation the penalty is no deficiency judgment. Section 2610 also adds to the penalty of nonpresentation, by not allowing any counsel fees. It also requires in the complaint an allegation of waiver of recourse. The exception in said Section 2610 refers to a claim secured by mortgage or lien where there has been no presentation. But this Section 2610 in no wise applies to a claim which has been presented.

The complaint alleges a presentation of plaintiff’s claim. The allegations in this respect may be somewhat defective. It is not averred that an affidavit was made by plaintiff at the time of said presentation, or any copy of the note or mortgage or description of the latter furnished the administrator. But the demurrer, on the grounds of ambiguity, unintellibility, and uncertainty, did not specify, any such defects. What was complained of on said grounds was that nothing was alleged as to the action of the administrator on the claim when presented. The allegations, in respect to the presentation are not mere conclusions of law, as respondent seems to insist in his brief; particularly in respect to the phrase “necessary vouchers.” So far as furnishing vouchers is concerned Section 2604, supra, does not make that a condition precedent to the allowance of a claim-. The executor or administrator may require satisfactory vouchers in his discretion.

The demurrer then admits that there was a presentation by plaintiff of his claim. If the claim was presented, what action the administrator took in reference to it, if said action in any wise would affect the case, could have been, and can be, pleaded in the answer. The mere failure, however, of the complaint to contain an allegation as to such action, is not fatal. Neither the presentation nor the nonpresentation affects the right to foreclose the mortgage, nor does the allowance or rejection by the administrator. We are also of the opinion that the failure did not render the pleading ambiguous, Unintelligible, and uncertain. '

The judgment is reversed, and the cause remanded, Avith directions to the lo wer court to overrule the demurrer.

Reversed and Remanded.

Pemberton, O. J., and Hunt, J., concur.