Jefferson Standard Life Ins. v. Estate of Jose Lovera , 125 Fla. 682 ( 1936 )

The decisive question presented by this record has been agreed upon by the parties as follows: "Does the payment of interest on the principal indebtedness secured by a duly recorded mortgage, by the Executor of an estate, liable for the payment of the debt, during the statutory period for filing claims, waive the necessity of filing proof of claim as required by Chapter 11994, Acts 1927, General Laws of Florida, barring all debts and demands of whatsoever nature against an estate when not so presented?"

We think the question must be answered in the negative, and the decree appealed from affirmed, on the authority of our recent decision in the case of Smith, Liquidator, v. Fecheimer, 124 Fla. 757,169 Sou. Rep. 395 (opinion filed June 30, 1936) wherein it was stated by BROWN, J., speaking for this Court:

"With the exception of the mortgage lien and right to foreclose same the Legislature did not see fit to exempt other debts and demands from the operation of the statute, and this Court is powerless to create such an exception."

The payment of interest to defer institution of foreclosure proceedings on a mortgage that might, under the statute, be enforced, absent any presentation as a claim against the estate of the deceased mortgagor, without more, is not sufficient to amount to a waiver of presentation as required by law such as would warrant a deficiency decree, as such payment is entirely consistent with the idea that the mortgage is to be recognized as an enforceable lien only, and no contrary intent should be inferred from the bare fact of interest payments made under circumstances perfectly consistent with the last mentioned hypothesis as to the motive thereof.

Decree affirmed.

WHITFIELD, C.J., and ELLIS, TERRELL, BROWN and BUFORD, J.J., concur.

ON PETITION FOR REHEARING.