Hibernia Savings & Loan Society v. Jordan ( 1880 )

McKINSTRY, J.

I concur. The claim was never presented to the executors, and the right of plaintiff to' sue accrued, if ever, at or subsequent to the date (March 2, 1875) when the mortgage debt became due. But as the law was at that date, and ever since has been, the plaintiff is expressly prohibited from maintaining the action by reason of the failure to present the claim. Nor—even assuming that the changes in the statutes are other than such as relate to the remedy—can plaintiff assert that the obligation of the contract has been impaired. At the time when the note and mortgage were executed, the law declared that no action should be maintained upon a claim which should not be presented to the executor and administrator. The plaintiff contracted with reference to the then existing law, which was substantially the same as the law in operation when the mortgage debt became due. For a portion of the period intervening between the two dates above mentioned, the statute authorized the foreclosure of a mortgage simply, although the claim which it was given to secure was not presented; but the plaintiff did not thereby acquire a vested right to maintain this action.