Edgerton v. Schneider

Paine, J.

We shall not attempt to determine what may be the effect, if any, of presenting a note secured by mortgage to the commissioners appointed by the probate court to hear claims against the estate of the deceased mortgagor, and its allowance by them, upon the right of the holder to pursue his remedy by foreclosure. Nor shall we attempt to determine the effect of a failure to present such note to such commissioners, within the time limited by the order of-the probate court for the presentation of claims, in respect to the question whether all further remedy upon the note would be barred.

According to the original provisions of chapter 94 of the Revised Statutes, it would seem that debts secured by mortgage were not intended to be included among those required to be presented for allowance and subsequent settlement by the executor or administrator. This conclusion would fairly result from the provisions of sections 12 and 41. The latter provided that all sales of real estate by executors or administrators under a license, should be subject to any mortgages existing at the time of the death of the testator or intestate; and the former that they should not be licensed to sell for the payment of any debt secured by mortgage, unless the remedy under the mortgage had been first exhausted. But the latter provision seemed to be peculiarly objectionable to the legislature, for they repealed it by chapter 86, Laws of 1859, and then repealed it again by chapter *389 166 of the same session. This repeal would perhaps indicate an intention on the part of the legislature to allow such sales in some cases to pay debts secured by mortgage; and, therefore, that such debts might properly be presented as claims against the estate. And yet they retain the provision of section 41, that all such sales should be made subject to existing mortgages, except so far as that was modified by chapter 145, Laws of 1862, which modification seems not to affect this case.

But whatever conclusion might he drawn from the statutes as they now are, as to the necessity or propriety of presenting such debts for allowance as claims against the estate, we are of opinion that the failure to present them does not bar the holder’s right to pursue his remedy by foreclosure, and enforce his specific lien upon the property subject to the mortgage. We hold this upon the ground that, even though such debts are subject to the general limitation provided in respect to claims against the estates of deceased persons, as contended by the appellant, yet the bar occasioned by such limitation should have no other or greater effect than would the bar under the general statute of limitations in favor of a living person. And in respect to that it has been settled by this court, in accordance with what was considered the result of the authorities, that the fact that the note is barred does not prevent the foreclosure of the mortgage. Wiswell v. Baxter, 20 Wis. 680 . There is no reason why the bar under the limitation as to presenting claims against estates should have any different effect, or why the decision of the one question does not dispose of the other.

We think also that this right of the holder of the mortgage was not cut off by the administrator’s sale under the license. It appears that there was no reservation or exception in the deed, and that the mortgage was not mentioned in the proceedings. *390 This being so, there being nothing in the record of the sale to show it to have been made in pursuance of the proviso of chapter 145, Laws of 1862, above referred to, it must then be held subject to the general provision of law, that all such sales are subject to existing mortgages. And the neglect to mention such mortgages in the deed, or other proceedings in making the sale, would not withdraw the sale from the effect of this provision, or prejudice in any way the rights of the holder of the mortgage.

Inasmuch as the purchaser at the administrator’s sale stood in the same position as the mortgagor, she could not, by acquiring a tax title, cut off the mortgage. And though the tax deed was issued to her husband, as he was acting as her agent in the purchase of this land, that was undoubtedly taken also in the capacity of agent, and has no different effect from what it would have been entitled to if it issued directly to her. ,

This disposes of all the material questions raised by the exceptions. The judgment must be affirmed.

By the Court. — Judgment affirmed.