Anglo-Nevada Assurance Corp. v. Nadeau

— Action to foreclose a mortgage executed by decedent on the tenth day of November, 1886, to secure payment of a promissory note for the sum of one hundred and fifty thousand dollars and interest, dated November 6, 1886, payable “on or before September 6, 1889.” Nadeau died January 15, 1887. His will was admitted to probate and his executors appointed April 18, 1887. Pursuant to an order of the probate court, notice to creditors was published on April 25, 1887, and the ten months within which creditors were required to present their claims expired February 25, 1888, about eighteen months before the maturity of the note. This action was commenced March 29, 1890, nearly six months after the maturity of the note. Neither the note nor the mortgage was ever presented to the executors for allowance; but in the complaint, all recourse against any other property of the estate than the mortgaged property is expressly waived. Judgment of foreclosure was rendered' in the usual form, except, that there was no judgment for a deficiency, nor for counsel fees.

This appeal is from the judgment upon the judgment' roll, including a bill of exceptions, showing that it was stipulated at the trial that the facts stated in the answer)

Counsel for appellants contend that plaintiff’s entire claim arising upon the note and mortgage was barred by sections 1493 and 1500 of the Code of Civil Procedure, because it was not presented to the executors for allowance within ten months from the publication of notice to creditors; and that it does not come within the exception contained in section 1500 (viz., “ An action may be brought by any holder of a mortgage or lien to enforce the same against the property of the estate subject thereto, where all recourse against any other property of the estate is expressly waived in the complaint”), because when the action was commenced plaintiff had no right to enforce the mortgage against any property of the estate, and therefore could not have “ expressly waived in the complaint” a right that it did not then have. No authority is cited for this, except a legal definition of the verb “to waive”; from which counsel deduce the proposition that nothing else than an existing right can be waived. But this deduction is not warranted by the decisions from which the definition relied upon was extracted, nor by authority of lexicographers. The verb “to waive,” as well as the noun “waiver,” is properly used in different senses. Webster defines the verb thus: —

“ 1. To relinquish; to give up claim to.

“2. To throw away; to cast off; to reject; to desert.

“3. {Law.) {a.) To throwaway; to relinquish voluntarily, as a right which one may enforce, if he chooses. (6.) {Old Eng. Law.) To forsake; to desert; to abandon.”

The same author defines the noun, “ waiver,” as follows: —

“ (Law.) The act of waiving, or not insisting on some right, claim, or privilege.”

In the third definition above, an example of a voluntary relinquishment is given, viz., “as a right which one may enforce, if he choo es ”; but this does not imply that one may not relinquish, “give up claim to,” or “ abandon ” a thing to which he has no right and an example might have been given of such relinquishment of a “ claim to ” something without right, for both the verb and the noun áre often properly used in this sense; and the legislature may have so used the verb, if that meaning was intended.

Besides, it is not clear that the plaintiff had no right to “ recourse against ” other than the mortgaged property at the time it filed its complaint. Plaintiff may have had the right, though the remedy for its enforcement depended upon the contingency of whether or not the defendants would plead the statute of limitations. If there had been no waiver in the complaint and no plea of the statute of limitations, plaintiff might lawfully have taken judgment for a deficiency, and might have enforced such judgment against other than the mortgaged property. However this may be, the object of the exception in section 1500 of the Code of Civil Procedure is to require a plaintiff to put his wiver upon record in his complaint, so that there may be no question that he has waived recourse, etc.; and it is immaterial whether or not he had made the waiver before his complaint was drawn by failure to present the claim to the executors within the ten months, or otherwise.

The construction contended for by counsel for appellants would deprive the exception of any effect in all that large class of cases in which the mortgage debt does not become due until after the expiration of the ten months’ notice to creditor's; yet there is no conceivable reason why the legislature should have intended tb exclude this class cf cases from the exception.

I think the judgment should be affirmed.

Fitzgerald, 0., and Belcher, C., concurred.

For the reasons giveii in the foregoing opinion, the judgment is affirmed.

Owing to the disqualification of Harrison, J., McFarland, J., acted with the remaining justices of Department One in rendering the foregoing opinion.

Hearing in Bank denied.