Rickards v. Hutchinson , 18 Nev. 215 ( 1883 )

By the Court,

Hawley, C. J.:

On the twenty-second day of May, 1876, Mrs. Nancy L. Wheat made, executed, and delivered to respondent her promissory note for three hundred dollars, payable on the twenty-second day of May, 1877,. and, to secure the payment of the note, gave a mortgage upon certain real estate situate in the town of Reno, in Washoe county. On the twenty-second day of March, 1879, Mrs. Wheat died intestate, and on the thirty-first day of May, 1879, her daughter, Mrs. L. C. Stiger, received letters of administration upon her estate and ever sinc.e has been the administratrix thereof. This action was commenced on the ni nth day of August, 1882, against the. administratrix to foreclose said mortgage. Appellant was made a party defendant, it being alleged in the complaint that he claimed an interest in the property aud that his interest “is subsequent to and subject to the lien of plaintiff’s mortgage.” Although the administratrix is named as a party defendant, she was not served with any process, and appellant is the only party appearing as a defendant. He interposed a demurrer to the complaint, and upon its being overruled, filed an answer. Upon the argument on the demurrer respondent asked leave of the court, which was granted, to dismiss that part of her action which claimed a personal judgment against the estate of Mrs. Wheat for any deficiency that might remain after the sale of the mortgaged premises, and the application of the proceeds thereof to the payment of the judgment which she might obtain.

Several questions are presented by appellant, but the principal one raised by the demurrer and answer is whether the mortgage is .barred by the statute of limitations. (1 Comp. Laws 1031.) Appellant claims that Mrs. Wheat, who was his mother, held the title to the property in her own name in trust for him. It appears from the evidence that in 1875 Charles Crocker was the owner of the land ; that appellant then entered into a written contract with Crocker for the purchase of the property ; that under this contract he was let into possession and improved the same ; that owing to anticipated troubles with his then wife, and expecting that she would sue him for a divorce and claim the premises as a homestead, he gave up his contract with Crocker for the purchase of the property, and.his mother then entered into a contract with Crocker for the purchase thereof in her own name. A portion of the money for which the note and mortgage was given was used by her to pay Crocker for the land, and was so used with the knowledge and consent of appellant. Crocker deeded the land to Mrs. Wheat on the ninth day of June, 1876. On the third day of Decepiber, 1878, Mrs. Wheat made and executed a deed, in fee-simple, of the land to appellant. This deed, however, was never delivered to appellant until the twenty-seventh of June, 1882, and was on that day filed for record iu the office of the county recorder of Washoe county.

The court, upon the trial of this cause, found, among other things, ‘ ‘that the interest of said Hutchinson is subsequent to, and subject to, plaintiff’s lien; that if said Nancy L. Wheat, deceased, did, as defendant claims, hold the aforesaid property as his (Hutchinson’s) trustee, nevertheless no trust was declared in writing previous to the giving of said note and mortgage; that said trust existed, if at all, by virtue of a secret agreement between said Hutchinson and said N. L. Wheat, deceased, of which plaintiff' had no knowledge, either actual or constructive; that defendant, Hutchinson, was not in the occupancy or possession of said premises-when said mortgage was given ; that the mortgage was executed to secure a bona fide loan for value, after the trust was created by the defendant, Hutchinson, and accepted by N. L. Wheat; that no notice to creditors appears to have been given to the creditors of the estate of said Nancy L. Wheat; that the statute of limitation did not run against the demand of plaintiff after the death of said N. L. Wheat; that the statute of limitation was not put in motion against plaintiff and in favor of G. R. Hutchinson, until the deed from N. L. Wheat made in his favor, and in which the trust was declared was recorded, and that the demand of plaintiff is not barred by the statute of limitation ; that since the appointment and qualification of said L. C. Stiger as administratrix,” she '“has actually resided and been beyond the limits of the state of Nevada, except for a period of about fifteen months, * • * * during which she has been within this state; * * * that at all the times mentioned in the complaint, said Nancy L. Wheat, deceased, was a married woman, but that the property mortgaged by her * * * was not the property of the community, but was, as to this plaintiff and to all the world, (except, perhaps, as to G. R. Hutchinson) her separate property. ’ ’

There is enough evidence in the statement on motion for a new trial to support these findings, and the facts found by the court are sufficient to sustain the conclusions of law “ that plaintiff is entitled to a decree against George R. Hutchinsonfor a sale of the property described in the mortgage, ’ ’ etc.

Mrs. Wheat at the time of the mortgage held the title to the property in her own name as her separate property, and, under the provisions of section 9 of the act defining the rights of husband and wife, (1 Comp. Laws, 159,) she ■ had authority to execute the mortgage in her own uame. As the respondent does not ask for any judgment against the estate, and as the estate has uo longer any interest whatever in the property, it was unuecessai’y for her to present the note and mortgage to the administratrix for allowance. She could thereafter maintain this action against Hutchinson alone for the foreclosure of the mortgage against the property, and it was unnecessary to serve the administratrix as she was not after such dismissal a necessary party to the action. (Christy v. Dana, 34 Cal. 553; Schadt v. Heppe, 45 Cal. 438; Corbett v. Rice, 2 Nev. 334; Bliss, Code Pl. sec. 102.)

If the statute of limitations could have been successfully interposed by the administratrix of the estate of Mrs. Wheat at the time appellant filed his deed for record, or at the time of the commencement of this action, there would not, of course, be any question as to his light to invoke the aid of the statute as a defense to this action ; but it is apparent, from the facts stated, that the action was not barred by the statute as against the estate, (1 Comp. Laws, 1036,) audit is also apparent that appellant has not brought himself within any rule which would entitle him to plead the statute in his own behalf upon any other ground. Pie was not in possession of the premises at the time the mortgage was given, uor at any time thereafter until 1880. Respondent had no knowledge of the secret trust existing between him and his mother, or of appellant’s interest or claim to the property until he had his de.ed recorded, which was more than four years after the maturity of the note.

The claim contended for by appellant, that the action as against him should have been brought within four years from the time of the maturity of the note, cannot be maintained upon reason or authority.

The allowance of counsel fees for the foreclosure was authorized by the terms of the mortgage. The amount allowed was not, under the facts of this case, unreasonable.

The judgment of the district court is affirmed.