228 N.W. 380 | S.D. | 1929
On December i, 1921, C. H. Quillian by warranty deed conveyed to respondent the north one-half of lot 8 and lots 9 and 10, in block 12, of the city of Belle Fourche, on which he had pi-eviously given a mortgage. This mortgage, not being paid, was foreclosed1, and sheriff’s deed for the premises issued January 20, 1925, under which respondent was evicted. Quillian died in January, 1923, and his widow, Emma Quillian, was appointed executrix of his will, and notice to creditors to present claims against the estate was given by publication, first publication being on February 8, 1923. Respondent presented no claim within the time limited, but on February 16, 1926, and while administration had not yet been closed, she presented a claim for $1,861.31, being the amount of the consideration recited in her deed from Quillian, with interest thereon from January 20, 1925, the date of the eviction. The claim was rejected, and respondent brought this action to recover the amount of the claim.
' Hildred Jane Hughes is a daughter of Quillian, and all of his estate, which included land in Texas of the-value of'at least $5,000, was devised in equal shares to his widow, Emma, and his daughter, Hildred Jane Hughes.
From a judgment on a directed verdict for the amount of the claim, and from an order denying a new tidal, defendants appeal.
The incumbrance against the land in the instant case existed at the time of Quillian’s conveyance to- plaintiff, and the
Our statutory provisions on this subject are practically identical with those of California, and it is there held that, unless a contingent claim has been presented, no action can be maintained thereon. Tropico Land & Improvement Co. v. Lambourn, 170 Cal. 33, 148 P. 206. In this case it was held that a claim contingent on a breach of warranty by a grantor, since deceased, must be presented within the time prescribed in the notice to creditors as a contingent claim, and, if not so presented, no action can be maintained thereon.
Respondent cites Hantzch v. Massolt, 61 Minn. 361, 63 N. W. 1069, 1070, as supporting the contention that contingent claims though not presented, are not barred. The Minnesota statute on the subject at the time that case was decided was substantially similar to ours. It provided: “All claims arising upon contracts, whether the same be due, not due, or contingent, must be presented to the probate court within the time limited in said order, and any claim not so presented is barred forever. * * * If the claim be not due, or ¡be contingent, when presented, the particulars of such claim must be stated.” The Minnesota court held that the statute, in so-far as it related to contingent claims, could not be construed literally, and in support of this position it referred to the fact that nowhere in the statutes of Minnesota was any provision made for the payment of such claims, or for retaining in the control of the court any funds to pa}»" them in the future, in case they became absolute.
But in this state the statute does not omit provision for the payment of this class of contingent claims. Rev. Code 19191, §
Under a statute quite similar to our own, the Supreme Court of North Dakota, in the recent case of Johnson v. Larson, 56 N. D. 207, 216 N. W. 895, held that a contingent claim for contribution by one comaker of a promissory note against the estate of his deceased comaker was barred, if not presented within the time prescribed by statute and the notice to creditors.
The further contention of plaintiff that fraud of the executrix in omitting from her sworn inventory land belonging to the deceased in the state of Texas to the value of $15,000, and stating to plaintiff that there was no money with which to pay off the incumbrance on plaintiff’s property, estops the executrix from availing herself of the nonclaim statute cannot be sustained. The fact that there are insufficient assets in an estate to pay the claims against it is no excuse for a creditor failing to present his claim. 24 C. J. 321, § 941; Id. 364, § 1022.
Nor can it be maintained that defendants Emma Quillian and Hildred Jane Hughes, as heirs and devisees receiving property of -Charles H. Quillian, are estopped from setting up the non-claim statute. There is no evidence whatever in the record that plaintiff was induced to refrain from -filing her claim by reason of any representations made 'by any defendant, or that she relied upon any statement, act, or conduct of defendants or either of them. The only evidence at all on this subject is that of Mrs. Quillian, who testified that Mrs. LeSueur “came to- see if we could take up the mortgage, and I told her that we couldn’t do anything at that
The judgment and order appealed from are reversed, with directions to dismiss the case on the merits.