84 Neb. 51 | Neb. | 1909
This action was commenced in the district court to foreclose a mortgage on the northeast quarter of section 85, township 15 north of range 11 west, situated in Howard county. The petition discloses that on the 14th day of January, 1899, one Duncan Connor, who was then the owner of the land above described, and his wife, Mary, executed and delivered a mortgage thereon to the plaintiff for the purpose of securing the payment of a promissory note for $700 due the 14th day of January, 1904; that after making the mortgage they sold and conveyed the land to one Sarah Kerr, Avho, as a part of the purchase price, assumed and agreed to pay the mortgage debt; that in the month of December, 3908, Sarali Kerr departed this life, leaving certain real and personal property which was disposed of by her last will and testament, and
It appears that one Frank J. Taylor Avas appointed guardian ad litem for the minor defendant, and in due time filed an application to have James Kerr made a party to the action, which Avas accordingly done. The guardian thereupon filed an ansAver, and a cross-petition against the defendant James Kerr, setting forth, among other things, that by assuming and agreeing to pay the mortgage debt, Sarah Kerr became personally liable therefor; that by the terms of her will provision was made for the payment of her just debts, after which the rest and residue of her estate, both real and personal, was devised and bequeathed to James Kerr; that he was thus made her residuary legatee, and was thereby charged with, and became liable for, the payment of the mortgage debt; that during his administration of the estate, and afterwards, he recognized his liability for its payment and his duty to pay off and discharge said mortgage by paying the interest and a part of the principal thereof, which sums so paid by him were credited on said note and mortgage; that he failed to disclose said facts, and to report his liability thereon to the county court of Howard county,
A demurrer was interposed to the cross-petition based upon the following grounds: “(1) That the court has no jurisdiction of the action. (2) That there is a defect of parties plaintiff. (3) That said answer does not state facts sufficient to constitute a cause of action. (4) That said Frank J. Taylor, guardian ad litem for the said David W. Kerr, has no legal capacity to sue or prosecute this action. (5) That the cause of action stated shows on the face of the pleading to have been barred by the statute of limitations, as no claim was hied therefor in the county court as provided by law, or otherwise, in the, probate of the estate of the said Sarah Kerr.” The district court sustained the demurrer, dismissed the action as to James Kerr, found that $592 was the amount due on the mortgage, appointed a receiver, entered a decree of foreclosure as prayed for in the plaintiff’s petition, and the guardian ad litem has brought the case here by appeal.
His first contention is that the facts pleaded in his cross-petition and admitted by the demurrer were sufficient to require the district court under its equity power to hear, adjust and determine the rights and liabilities of all of the parties to the transaction, including the liability of James Kerr for the payment of the mortgage debt, and require him to pay the same. The first question to be
Again, James Kerr was the residuary legatee of the estate of Avliich he avus executor, and he took the property of Ms testator charged by the terms of her will with the payment of her debts. When he took over the property and secured his discharge as executor, he made himself personally liable for the payment of the mortgage debt, and equity will not iioav permit him to deny his liability therefor, for “equity considers that done which should be done.” Sutherland v. Harrison, supra, was a case brought to foreclose a vendor’s lien upon certain real estate situated in the city of Chicago. It appears that Sutherland, by contract, purchased the land in question of one Samuel Smith. The purchase price being $2,000, payable on January IS, 1873, with interest at 6 per cent, per annum, payable semiannually. No payment of the
Indeed, this general principle does not seem to be seriously questioned by counsel for the appellee, but it is earnestly contended by him that the debt in question is a claim against the estate of Sarah Kerr; that, because it was not filed and allowed by the county court of Howard county during the process of administration, it is now barred by the statute of limitations, and no action can be maintained against the executor and residuary legatee thereon. We think this contention is beside the mark. It is true that the mortgage debt Avas, in a way, a claim which might have been filed against the estate, but the mortgagee was not required to pursue that remedy. Null v. Jones, 5 Neb. 500, and Jones v. Null, 9 Neb. 57. The claim was not so presented, and the filing of the cross-petition herein is not the presentation of the claim against the estate. It constitutes a proceeding in equity to enforce the liability incurred by the executor and residuary legatee by his failure and neglect to pay off and discharge the mortgage in question. Having by his conduct made the claim his personal debt, equity will require the executor and residuary legatee to pay off and discharge the mortgage for the benefit of the owner of the fee of the real estate, and the action is not barred by the statute of limitations. Patrick v. Patrick, 72 Neb. 454.
It is further contended that the district court had no jurisdiction of the subject matter of the action set out in
It is also contended that the guardian ad litem of David W. Kerr has no legal capacity to prosecute this action. At common law infants were required to sue by guardian ad litem, but by the statute of Westminster they were authorized to sue by next friend in all actions, and this remedy was held to be cumulative, leaving it optional for the suit to be brought by guardian or next friend. In this country the procedure is governed by the statutes of the several states, and at the present time an infant plaintiff is usually represented by his next friend, but in some states an infant may sue by guardian ad litem as well as by next friend, while in others he must sue by guardian ad litem. Grosovsky v. Goldenberg, 86 Minn. 378. In respect to the representation of an infant plaintiff, there would seem to be little, if any, difference between the functions of a guardian ad litem and of a next friend. An infant-defendant, however, should always be represented by a guardian ad litem appointed for that purpose. Code, sec. 38.
Now, in the case at bar David W. Kerr was made a party defendant. Therefore it was necessary for the court to appoint a guardian ad litem for him to protect his interests in the litigation. We find that section 36 of the code provides that the action of an infant may be brought by his guardian or next friend, and the word “guardian” may be said to have been used by the lawmakers in its general and comprehensive sense, which would include a guardian ad litem. We think therefore it may be well said that the guardian ad litem appointed for an infant defendant, in addition to filing a general denial, would not only have the power, but it would be his duty, to take affirmative action and prosecute a cross-petition if it should be found necessary to do so for the protection of the interests of his ward. We are therefore of opinion that this contention is without merit.
For the foregoing reasons, we are of opinion that the demurrer to the cross-petition should have been overruled. The judgment of the trial court sustaining the demurrer and dismissing said petition is therefore reversed and the cause is remanded to the district court for further proceedings in harmony with this opinion.
Reversed.