Moores v. Ellsworth

22 Iowa 299 | Iowa | 1867

Lowe, Ch. J.

1. executor trator: claims secures iiy mortgage, The defense set up was insufficient to bar the plaintiffs’ foreclosure, and the demurrer should have been sustained. We can perceive no reason why the allowance of a claim, secured 7 by mortgage, although duly filed and proved before the County Court, against the estate of deceased, should constitute a waiver of the right subsequently to foreclose the mortgage.

It is a well understood rule of law that a mortgage lien continues until the debt, to secure which the same was executed, shall have been paid or extinguished. Such filing, proof and allowance were simply a notice and the establishment of a claim, agreeably to • the provisions of the administration laws, which the executors were authorized to pay. If it was not paid, it was competent for the plaintiffs in this case, under sections 2419, 2420 of the Revision, either to cite the administrators before the. County Court and obtain judgment against them, if no cause to the contrary is shown, or, at their election, to institute a proceeding to foreclose their mortgage, as they have done in this case. As bearing more or less on this subject, see Wahl v. Phillips, 12 Iowa, 81; Allen v. Mower, 16 Id., 307; The State v. Lake, 17 Id., 215; Hershey v. Hershey, 18 Id., 25.

Reversed and cause remanded.

Reversed.