173 P. 1144 | Idaho | 1918
On March 1st and 5th, 1910, Joseph M. Wild made, executed and delivered to the Kendrick State Bank, respondent herein, his two promissory notes aggregating $1,000, secured by a real estate mortgage on lots 2 and 3 of block 4 of the original town site of Kendrick, Latah county, which mortgage was duly filed of record. On May 18, 1911, Wild made, executed and delivered to George P. Barnum, an appellant herein, his promissory note in the sum of $1,534.40, secured by a mortgage on the same property, which was also duly filed of record.
On the 5th of August, 1911, Wild died testate, and thereafter Ruth W. Broman, county treasurer and ex-officio public administrator, was duly appointed as administratrix with the will annexed of Wild’s estate.
On the 10th day of September, 1912, the Kendrick State Bank filed with the administratrix its claims against the estate, which were duly allowed. However, it failed in presenting and filing its claims, to refer to the fact that its notes were secured by the mortgage.
On the 27th day of May, 1912, the Farmers’ Bank & Trust Company, which then held the Barnum note and mortgage as collateral, filed its claim as a secured claim.
In 1914 a foreclosure proceeding was commenced by both mortgagees. At that time, as appears from the record, it was
On the 25th day of February, 1915, the respondent commenced this action to foreclose its mortgage. Barnum and the Farmers ’ Bank & Trust Company filed their separate answer; the administratrix filed her separate answer; Ma.ry Zimmerman and Katherine Laudon, heirs of Joseph M. Wild,
While there are several assignments of error, the real contentions of appellant are: First, that by failing to file its claim as a secured claim, respondent waived its mortgage lien and became an unsecured creditor; second, that there is but one form of action for the enforcement of a private right; that a petition for the sale of property in probate is an action; that therefore, after a sale in probate no other proceedings can be had in the district court.
Discussing the propositions in the order above stated: Does the fact that respondent filed its claim as an unsecured claim operate as a waiver of its mortgage lien ? In the instant case, respondent presented its claim as an unsecured claim, and it was allowed as such. However, it was always treated as a secured claim by the parties interested in the estate, including appellants, who had actual knowledge of the fact that it was a secured claim. The general rule is that a debtor whose claim is secured by a mortgage need not present his claim for allowance in order to preserve his right to subject the property covered by his lien to the satisfaction of his claim, but when he seeks to foreclose his mortgage he must waive all recourse against any other property belonging to the estate.
In Bank of Sonoma County v. Charles, 86 Cal. 322, 24 Pac. 1019, a ease involving the identical question urged by counsel for appellants, it was contended: “That plaintiff, by presenting the note and having it allowed, waived his mortgage and all his rights under it.”
The court said: “We do not think that the consequences of plaintiff’s carelessness are so ruinous as to utterly preclude it from the benefit of the mortgage lien. Its property therein should not be held to be lost unless such holding be an inevitable legal conclusion. Plaintiff certainly did not intend to waive or abandon its mortgage. It evidently supposed that
To the same effect are Schuelenburg v. Martin, 2 Fed. 747, 1 McCrary, 348; Howard v. J. P. Paulson Co., 41 Utah, 490, 127 Pac. 284.)
The same principle has been applied with respect to a vendor’s lien (Selna v. Selna, 125 Cal. 357, 73 Am. St. 47, 58 Pac. 16; and to a judgment lien (Morton v. Adams, 124 Cal. 229, 71 Am. St. 53, 56 Pac. 1038).
We are satisfied that the foregoing cases announce the correct rule, and we therefore hold that the fact that a mortgagee files his claim against a decedent’s estate in probate as an unsecured claim does not operate ipso facto as a waiver of his mortgage lien.
Counsel relies on Rev. Codes, sec. 4020, to support his contention that in this state there is but one form of action for the enforcement of a private right.- This section of the statute has no application to the point contended for, but is intended splely to abolish the distinction between actions at law and suits in equity and to substitute therefor one action, known as a civil action. Rev. Codes, sec. 4520, prescribes the only method for the recovery of a debt, or the enforcement of any right secured by a mortgage upon real estate or personal property, and this was the only action that could be maintained by the respondent in order to satisfy its debt secured by its mortgage. The filing of a claim, secured or unsecured, with the administrator, is not an action within the meaning of the rule contended for, and gives to the claimant no right of action, but leaves the selling of the property and the payment of the debt in the discretion of the administrator, in the manner prescribed by law. Had appellants lived up to their agreement and accepted the deed to the property after the confirmation of the sale, they would have taken the property
The trial court found, and the finding is supported by the evidence, that the distribution to respondent of its portion of the $700, which was distributed pro rata among the creditors, secured and unsecured, was made through inadvertence and under a misapprehension of the facts, and directed that the amount so paid to respondent be repaid to the administratrix, which was done. Respondent, therefore, has not participated in the general assets of the estate and its relief in this action is limited to its security.
There appears to have been some discrepancy in the amount of the judgment occurring through an error in computation. Counsel for respondent admitted upon the argument that this discrepancy amounted to $80 and that the judgment should be reduced by that amount. The trial court should correct its judgment accordingly. For the purpose of this appeal, however, there is nothing in the point available as error, — no effort appears to have been made to have the trial court correct the judgment in this respect, nor is there anything to show that the discrepancy was called to the attention of the trial court. The judgment should be corrected in accordance with the foregoing suggestion and, as thus corrected, is affirmed. Costs awarded to respondent.