**

*

Veigh, 93 U. S. 282, 23 L. Ed. 917, in this language: "If the action be upon a money demand, the court, notwithstanding its complete jurisdiction over the subject and the parties, has no power to pass judgment of imprisonment in the penitentiary upon the defendant. If the action be for libel or personal tort, the court cannot order in the case a specific performance of a contract. If the action be for the possession of real property, the court is powerless to admit in the case the probate of a will. The sentence of a person charged with felony, upon conviction of the court without the intervention of a jury, would be invalid for any purpose. The decree of a court of equity upon oral allegations, without written pleadings, would be an idle act, of no force beyond that of an advisory proceeding of the chancellor." But we need not look beyond the records of our own court for an instance of this nature. We recently discharged upon habeas corpus a prisoner confined in the penitentiary, who had been convicted of the crime of rape under an indictment charging the crime of murder. In that case we held that the district court had no power to convict a defendant of a different crime than that for which he was being tried. Ex parte Dela, 60 Pac. 217.

It is unnecessary at this time to intimate any opinion as to the effect of the supplemental answer, but there can be no question that a judgment of a sister state is a bar to an action in this state between the same parties, and upon the same cause of action. is ordered that the writ be dismissed.

It

BONNIFIELD, C. J., and MASSEY, J., con

cur.

JONES v. POWNING. (No. 1,574.) (Supreme Court of Nevada. April 17, 1900.) EXECUTORS AND ADMINISTRATORS-STATUTE OF LIMITATIONS-WAIVER-ACCRUAL OF AC

TIONS-LOAN OF CORPORATION STOCK.

1. Under Probate Act, § 113 (Comp. Laws, § 2898), providing that no claim shall be allowed by an administrator which is barred by limitations at the death of the person whose estate is being administered, a waiver of the statute by an administrator, and his allowance of a claim barred thereby, are invalid.

* *

*

*

2. Defendant's intestate borrowed certain stock of plaintiff, to be used as collateral security for a note; his receipt for the stock stating, "Should I be unable to meet said note by reason of accident or death, or return of said stock to [plaintiff]. it is my wish that so much of my property as may be sufficient to cover this obligation shall be sold to * * reimburse [plaintiff]." Intestate did not pay the note, but the stock was sold to meet it; and intestate died more than six years thereafter, without having reimbursed plaintiff for the stock. Held, that plaintiff's cause of action for the value of the stock accrued when intestate failed to pay the note, and allowed the stock to be sold.

Appeal from district court, Washoe county; B. F. Curler, Judge.

Action by John P. Jones against Clara A. Powning, as administratrix of the estate of 60 P.-53

C. C. Powning, deceased. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Alfred Chartz, for appellant. A. E. Cheney and Oscar J. Smith, for respondent.

BONNIFIELD, C. J. The complaint shows, among other things, that C. C. Powning died at Reno, Washoe county, Nev., on the 4th day of October, 1898, leaving an estate in said county; that on the 6th day of December, 1898, Clara A. Powning was duly appointed administratrix of said estate; that on the 17th day of December, 1888, the plaintiff loaned to C. C. Powning, at his request, certificate No. 713, for 250 shares of the capital stock of the Anglo-Nevada Assurance Company, of the value of $18,750, to be used, and which were used, by Powning as collateral security for the payment of his certain promissory note, executed December 17, 1888, to the Bank of California, at San Francisco, for the sum of $18,750; that Powning agreed to pay plaintiff said sum for said stock, or within a reasonable time to return said stock; that subsequently, on the 2d day of January, 1889, said C. C. Powning executed and delivered to plaintiff an instrument in writing, in words and figures following, to wit: "Reno, Nevada, January 2, 1889. This is to certify that on the 17th day of December, 1888, I received from John P. Jones cert. No. 713, Anglo-Nevada Assurance Co. of San Francisco, for 250 shares, to be used, and was so used, by me as collateral security for a certain promissory note given by me on said date to the Bank of California for the sum of $18,750; and should I be unable to meet said note by reason of accident or death, or return of said stock to said John P. Jones, it is my wish and desire that so much of my real and personal property as may be sufficient to cover this honorable obligation shall be sold, to fully and completely reimburse said John P. Jones against any loss on account of his testimonial of friendship. And I so decree to all whom it may concern. C. C. Powning. Witness: Clara A. Powning." It is also shown by the complaint that said Bank of California in the year 1890 sold said stock so pledged by said C. C. Powning as security as aforesaid for the sum of $21,909.37; that said C. C. Powning has never returned said stock to the plaintiff, or any part thereof, and has never paid said sum of $18,750, or any part thereof, and has never paid any interest thereon. It also appears that on the 28th day of January, 1898, the plaintiff filed with the clerk of the district court his claim against the deceased, setting forth said instrument, and claiming that there was due thereon the principal sum of $18,750, and legal interest on the same in the sum of $13,125; that thereafter the said administratrix allowed said claim to the full amount, $31,875, and that the judge of the district court rejected the whole of said claim. The defendant demurred to the complaint on two grounds. The second ground was "that

it appears upon the face of said amended complaint that the cause of action set forth therein accrued more than six years before the death of C. C. Powning, and that said claim, when presented for allowance as a claim against said estate, was, and now is, barred by the statute of limitations." The court sustained the demurrer. The plaintiff elected to stand on his complaint, and so stated in open court. The court gave judgment to the effect that the plaintiff take nothing by his said complaint, and that the defendant recover of him her costs, taxed at $1.80. Judgment was entered accordingly. This appeal is taken from said judgment and the order sustaining said demurrer.

Counsel for appellant contends that when a claim is presented to an administrator for allowance, although barred by the statute of limitations at the time of the death of the decedent, the administrator may waive the statute and allow the claim, and it becomes a valid claim against the estate. He cites several authorities to support this contention. Respondent's counsel cite several authorities holding to the contrary. The weight of authority, in our opinion, is against the appellant's contention. Besides, the mandatory provisions of section 113 of the probate act (section 2898, Comp. Laws) settle the question against the appellant, to wit: "No claim shall be allowed by the executor or administrator or the district judge which is barred by the statute of limitation at the time of the death of the person whose estate is being administered."

The second contention for appellant is that the statute of limitations did not begin to run against said claim till the death of C. C. Powning, and was not a bar, while it is the contention for respondent that the statute began to run against the claim in 1890, at the time said stock was sold by the bank. Counsel for appellant says: "It is submitted that the words, 'and should I be unable to meet said note by reason of accident or death, or return of said stock to said John P. Jones,' make the promise a conditional promise, and attach the condition to the time when any one can determine positively when the statute would begin to run against said promise to pay, because the breach of the contract did not occur until the accident or death occurred which prevented the promisor from paying said note, or return of said stock." We may not fully comprehend the above contention, but, as we understand it, it is that there was no breach of the contract by C. C. Powning till his death; that by reason of his death he was prevented from paying said note and from returning said stock, and then, at his death, the right of action accrued to the plaintiff, and not before. This contention, we think, is not tenable. The complaint shows that when Powning borrowed the stock he agreed to pay Jones therefor $18,750, or return the stock within a reasonable time. About three weeks thereafter, on the 2d day of January, 1889,

he executed said instrument. This, evident. ly, was some time before the maturity of his said promissory note. By this instrument he expressed a desire that sufficient of his property should be sold to pay Jones for said stock, in case he should be unable to meet said note, by reason of accident or death, or to return said stock. Evidently, death did not prevent him from paying said note, for his death did not occur until more than six years after his default in paying the same If he were prevented by accident from paying the note, the accident occurred more than six years before his death. His breach of contract occurred upon his failure "to meet said note," and when he let said stock be sold as said collateral security, instead of returning it to Jones; and thereupon Jones' right of action accrued. We do not perceive that said instrument had any value, except as a written acknowledgment of Powning that he had received said stock as a loan, to be used by him as collateral security for the payment of his said promissory note, and his liability for its value if he permitted it to be sold by the bank, or otherwise failed to return it. The plaintiff's claim against the deceased was barred at Powning's death by the statute of limitations; and said section of the probate act prohibited its allowance by the administratrix, and its approval by the district judge. In re Mouillerat's Estate, 14 Mont. 245, 36 Pac. 185. The judgment and order appealed from are therefore affirmed.

MASSEY and BELKNAP, JJ., concurring.

(25 Nev. 378)

KIRMAN ▼. POWNING. (No. 1,575.) (Supreme Court of Nevada. April 14, 1900.) MORTGAGES-FORECLOSURE-EXECUTORS AND ADMINISTRATORS-CLAIMS-PRESENTMENT-ALLOWANCE.

1. Comp. Laws 1900, §§ 2893-2896, require the filing, indorsement, and presentment of claims against a decedent's estate, and that, when the claim is secured by mortgage, the mortgage, or certified copy thereof, be attached and filed. Section 2943 provides that when an administrator sells land subject to any mortgage which is a valid claim against the estate, the proceeds shall be applied to the satisfac tion of the mortgage, and preserves the lien thereof against the statute of limitation pending settlement of the estate. Held not to require presentment of the mortgage to the administrator for allowance as a claim against the estate as a condition to foreclosure.

2. Comp. Laws 1900, § 2899, provides that no holder of any claim against an estate shall maintain any action thereon unless it shall have been filed as required by section 2896, requiring claims secured by mortgage to have attached a mortgage, or certified copy thereof. Held, that filing a verified claim for the amount due with the administrator, apprising him of the nature and character of the claim, is a sufficient compliance, the requirement as to filing the mortgage not being mandatory.

3. Under Comp. Laws 1900, § 2896, making it the duty of an administrator within a certain time to indorse on a claim his approval or rejection thereof, failure to indorse the claim within the time operates as an allowance thereof.

A

4. Comp. Laws 1900, § 3067, providing that the law regulating the proceedings in civil cases shall apply in the matter of allowance of claims against an estate, authorizes the amendment of a claim by attaching thereto exhibits required to accompany the claim when presented to the administrator for allowance.

Appeal from district court, Washoe county; B. F. Curler, Judge.

Action by R. Kirman against Clara A. Powning, as administratrix of the estate of C. C. Powning, deceased. Judgment for defendant, and plaintiff appeals. Reversed.

Alfred Chartz, for appellant. A. E. Cheney and Oscar J. Smith, for respondent.

MASSEY, J. The appellant instituted this action to foreclose a mortgage. A demurrer to the complaint was interposed and sustained, and a judgment rendered in favor of the respondent. The appeal is taken from the judgment and the order sustaining the de

murrer.

The facts shown by the complaint are that C. C. Powning died intestate at Washoe county, Nev., about the 4th day of November, 1898, leaving an estate therein; that on the 6th day of December, 1898, an order was made by the district court of said state in and for said county appointing the respondent administratrix of the estate of said decedent, and that on said day letters of administration were regularly issued to her as administratrix of said estate, and that ever since she has been and is the appointed, qualified, and acting administratrix of said estate; that on the 17th day of December, 1896, at said county of Washoe, the said C. C. Powning, deceased, executed and delivered his certain promissory note, bearing date of that day, to the appellant, by which he promised to pay appellant, on or before June 17, 1897, $2,500 at the banking office of the Washoe County Bank, with interest at the rate of 8 per cent. per annum from date until paid, a copy of which note is fully set out; that to secure the payment of said principal sum and interest mentioned in said note the said Powning executed under his hand and seal, and delivered to the appellant, a mortgage bearing date of December 17, 1896, conditioned for the payment of said sum and interest, which mortgage was duly acknowledged and certified and recorded on the 19th day of December, 1896, in the office of the county recorder of Washoe county in Book M of Mortgages, page 537. A copy of the mortgage, containing a description of the real estate covered thereby, with the indorsements thereon, is fully set out in the complaint. It is further shown: That there is due and unpaid to the appellant on said note and mortgage the principal sum and interest thereon at the specified rate, amounting to $400. That on the 31st of December, 1898, and within the time allowed by law for the presentation of claims against the estate of said C. C. Powning, the appellant presented his said claim, duly verified, to the administra

trix of said estate for allowance, and filed the same with the clerk of the court for the amount hereinbefore set forth. That thereafter, and within the time allowed by law, the respondent considered said claim, and allowed the same by statutory limitation, and thereafter she notified appellant to be and appear before the judge of said court, and show cause why said claim should be allowed. That, pursuant thereto, appellant appeared before said judge to show cause, as aforesaid, and offered said judge, sitting in chambers, the original note and mortgage hereinbefore set forth, for the purpose of attaching the same to said claim as filed. Counsel for respondent interposed no objection to said offer, and appellant left said original note and said original mortgage with the said judge for the purpose of attaching the same to said claim, and making the same a part thereof, and said judge retained said note and mortgage until the day of June, 1899. That

on the 15th day of May, 1899, said judge considered said claim, and, while in possession of said note and mortgage, rejected the same. That the claim presented is in the words and figures following: "In the Second Judicial District Court of the State of Nevada in and for Washoe County. In the Matter of the Estate of C. C. Powning, Deceased. Creditor's Claim. The undersigned, a creditor of the estate of C. C. Powning, deceased, presents his claim against the estate of said deceased, with the necessary vouchers for approval, to wit: Estate of C. C. Powning, deceased, to R. Kirman. To note and mortgage, dated Reno, Nevada, December 17th, 1896, recorded December 19th, 1896, at 46 min. past 9 a. m., in Record M of Mortgages, page 537, records of Washoe county, Nevada, which note and mortgage is hereby referred to and made a part of this claim, $2,500.00; to interest on same to December 17, 1898, $400.00,-total, $2,900.00." To this claim there was attached the statutory affidavit. The appellant asks for a decree of sale of the land in the usual manner, the proceeds to be applied to the discharge of the amount due, and for the usual relief in proceedings of foreclosure, waiving recourse to any other property of said deceased other than the property described in the mortgage.

The important question to be considered is made by the claim of the respondent that no action can be maintained against the representative of a deceased person to foreclose a mortgage upon any property of the deceased, under the statutes of this state regulating the settlement of the estates of deceased persons, unless the same has been presented to such representative within the time and in the manner prescribed by said statute. In support of this contention it is argued that the statute giving to the representative of a deceased person possession and control of all the property of the intestate, the right to maintain actions to recover the possession of all the real estate of the deceased, and damages thereto, the

right to the rents, issues, and profits of the same, and the imposed duty to keep the same in reasonable repair, the duty to inventory and appraise all the estate of the deceased, and his many other duties regarding accounting, sale of property, order of the payment of debts, shows that such was the intention of the legislature in the passage of the act. While the question is not a new one, and there seems to be some conflict in the decision of the question between the courts of the various states,--such conflict doubtless arising from the form of the various statutes, or the language used therein,-yet, so far as this court is concerned, because of the recent passage of the act regulating the settlement of estates of deceased persons, the question is comparatively new, and a just and reasonable determination involves the judicial construction of the act, aided, in some respects, by the opinions of other courts upon statutes in many points similar to our own, where such opinions seem to be based upon sound logic and reason. Briefly stated, by the requirements of said act "all persons having claims against the deceased" must within a certain time file the same, with necessary vouchers, with the clerk of the court; if the claim be not filed within the time specified, "it shall be forever barred." It is further required that such claim shall be supported by affidavit, the form and contents of which are fully set out in the act. It is made the duty of the administrator within a certain time to indorse thereon his rejection or allowance of such claim, and within a limited time thereafter he is required to present all claims allowed by him to the district judge for his approval or rejection. Quoting from the act, it is further provided that: "All claims, when approved by the judge, shall be ranked among the acknowledged debts of the estate, to be paid in due course of administration. If the claim be founded upon a bond, bill, note, or other instrument, the original instrument need not be filed, but a copy with the indorsements may be attached to the statement of the claim and filed therewith, and if the claim be secured by mortgage or other evidence of lien, it shall, or a certified copy from a record, be attached to the claim and filed therewith." Comp. Laws 1900, §§ 2893-2896. A mortgage is something more than a "claim against the deceased." It is a lien upon the specific property described therein, carrying with it the right, in case of default, of action to foreclose, and by such proceedings have applied to its discharge the proceeds arising from the sale of the specific property. The district judge acting in probate matters under the sections above cited has no power or authority to determine the question of the validity or invalidity of the lien of the mortgage, or to make any decree or order for the sale of the mortgaged premises upon the presentation of the claim as defined in the statute. His allowance or rejection of the claim does not determine the validity of the lien created by the mortgage. It is not sufficient to say that the

act prescribing the order of the payment of the debts of the decedent confers authority upon the district judge to determine in this manner the validity of the mortgage lien. The statute makes a distinction between liens of mortgages and "claims against deceased persons." "If the claim be founded upon a bond, bill, note, or other instrument, the original instrument need not be filed, but a copy with all indorsements may be attached to the statement of a claim and filed therewith, and if the claim be secured by mortgage or other evidence of lien, it shall, or a certified copy from a record, be attached to the claim and filed therewith." Id. § 2896. That the legislature did not intend that the rights of the mortgagee and the validity of the mortgage lien should be determined in the summary manner prescribed by the statute is not only apparent from these provisions of the act, but also from the subsequent section providing that, when any sale is made by an administrator, pursuant to the provisions of this act, of land subject to any mortgage which is a valid claim against the estate of the deceased, the purchase money shall be applied, after paying the necessary expenses of the sale, first to the satisfaction of the mortgage, and the residue in due course of administration; and such application shall be made without delay, and the land shall remain subject to such mortgage until the purchase money shall have been actually so applied; and that no lien against any estate shall be affected by the statute of limitations pending the proceedings for the settlement of such estate. Id. § 2943. It seems to us that the language used in this section, taken in connection with the language used in the sections above quoted, is conclusive of the question. It preserves, in direct terms, the lien of a mortgage upon the land sold until the proceeds arising from such sale have been actually applied to the discharge of the mortgage lien. It has been claimed that the words "valid claim," used in the last section, must be held to mean a claim against the deceased which has been duly presented in the manner required by the provisions heretofore cited. We are not disposed to give to the words used the strained and technical construction contended for, in view of the further provision of the same act requiring that it shall be liberally construed, to the end that justice may be done all parties. Id. § 3055. The legislature, by the use of the words, "valid claim against the estate of the deceased," construed with the other language used in the same section, clearly intended that lands sold by the administrator, which were justly chargeable with the payment of a mortgage lien, should be subject to sale devested of such lien only upon the actual application of the proceeds as specified. By this provision valuable property charged with such liens may be used for the purposes of administration without impairing any of the rights of the mortgagee. To place a different construction on the statute requires that we should not only ignore the last clause contain

ed in the section, which declares that "no lien against any estate shall be affected by the statute of limitation pending the proceedings for the settlement of such estate," but must hold, in direct contravention thereof, that the failure of the mortgagee to present his lien within a few days after notice of appointment or failure to sue upon the same within a few days after presentment and notice of rejection shall operate as a perpetual bar to any action to enforce the same. We have examined a large number of cases decided by the courts of other states. Woerner, in his work on the American Law of Administration, correctly states the general rule, as we believe, governing the majority of these cases. He says: "Actions to foreclose mortgages or to enforce other collateral securities or liens are distinct from the allowance of the debts so secured; and since, generally, probate courts have no jurisdiction of such actions, the limitations and conditions imposed on the parties enforcing the payment of simple debts against executors or administrators are not applicable. Thus, mortgages or vendors' liens may generally be foreclosed without having proved the debt in the probate court, or making the affidavit of claimants presenting demands against administrators, or proceeding within the time required for the presentation of claims against deceased persons; nor, on the other hand, does the probate of the claim affect the holder's right of foreclosure. For the same reason the right of foreclosure gives the holder no remedy against the general assets of the estate, and does not give such a claim a preference thereto, and his claim in this respect for any deficiency is barred like any other claim, unless he presents the same in proper time." Woerner, Adm'n, § 409; 8 Am. & Eng. Enc. Law (2d Ed.) 1070. See, also, authorities cited in footnotes to text of the above authorities. The supreme court of Washington, discussing the same question, under a statute with provisions similar in many respects to our own, says: "As to the first objection raised by the defendant, we think that the plaintiff's rights, under his mortgage, as to the lands mortgaged, were not barred by a failure to present his claim secured thereby to the executrix; that the failure to present his claim would only operate to prevent him from making any deficiency that might remain after exhausting the mortgaged property out of the testator's other estate." Scammon v. Ward (Wash.) 23 Pac. 439.

It is necessary to notice briefly one other question raised. It is claimed that the facts shown by the complaint do not constitute a sufficient filing or presentment of a claim to save the bar of that provision of the act which declares that no holder of any claim against an estate shall maintain any action thereon unless it shall have been first filed, and under the conditions specified. Comp. Laws 1900, § 2899. The point of this contention is that a strict compliance with the provisions of this section requires that the ap

pellant should have attached copies of the note and mortgage to his claim, or the statement thereof, as provided for by section 2896, supra. This contention is correct if we are required to construe the words "may" and "shall," used in the last clause of said section 2896, as mandatory. We do not believe it was intended that the language should be given such construction. Taking the language of sections 2893 and of 2896, and we are of the opinion that it was the manifest intention of the legislature that formal and technical pleading should not be required in the presentation of claims; that the court should investigate these claims in a summary manner without pleadings that required the skill and learning of an attorney at law in their preparation; that by such procedure expense and delays to both claimants and the estate should be avoided. "This act shall be liberally construed, to the end that justice may be done all parties, and a speedy settlement of estates at the least expense secured," is the declaration of said section 3055, and, if this statutory rule is to be applied to any of the provisions of the act, it seems most appropriate to apply it to those sections regulating mere matters of pleading, and not of substantive law. We are of the opinion that a claim, or statement of a claim, properly verified, which shows the nature and charac ter and amount of the same, and the liability of the estate of the decedent, and, if there is future litigation as to the fact of presentment, it can be distinguished from all other similar claims, and is sufficient to bar anoth er proceeding upon it, is a sufficient compliance with the terms of these sections of the statute when given the liberal construction of the statutory rule above quoted. Of the authorities from the courts of other states examined, the following decisions of the supreme court of Alabama are cited, and are, as we believe, considered with the provisions of the statute of that state regulating the settlement of estates of deceased persons, based upon sound reason. Flinn v. Shackleford, 42 Ala. 202; Bibb v. Mitchell, 58 Ala. 657; Agnew v. Walden, 84 Ala. 502, 4 South. 672. Quoting from the opinion in Flinn v. Shackleford, supra, Mr. Justice Byrd, speaking for the court, says: "The Code declares that 'all claims against the estate of a deceased person must be presented within eighteen months after the same have accrued or within eighteen months after the grant of letters testamentary or administration; and if not presented within that time are forever barred.' * The statute previous to the adoption of the Code was, in substance, upon this subject, the same as the above provision. This court has long held that under this statute it is not necessary for the claimant to present the original claim to the executor or administrator in order to hold them liable, and the presentation of a copy or abstract, or even notice given of the claim, with the assertion of the liability of the estate, and that he looked to