Hinkel v. Crowson

Respondent, Ada M. Hinkel, as executrix, has been substituted for John M. Hinkel, the original plaintiff herein. The latter will 'be referred to as the plaintiff. The complaint alleges that the plaintiff sold and conveyed a certain lot to Florence G. Hinkel November 27, 1914, for the agreed price of $4,000; that she gave the plaintiff her promissory note, payable in monthly installments of $30 each, for the full purchase price; that although the note recites that it is secured by a mortgage it is not so secured; that thereafter she and defendant Crowson intermarried; that she died in October, 1916; that she paid a total of $510

The court found the allegations of the complaint to be true; that Florence G. Hinkel and defendant Crowson intermarried November 30, 1914, and thereafter the former filed a declaration of homestead on the lot; that all unpaid installments of said promissory note which became due prior to the death of Florence G. Crowson are barred by the statute of limitations but that the installments which became due

The decree adjudges that there is due plaintiff on the promissory note the sum of $6,503.60; that he has a vendor’s lien on said lot for that sum; that the plaintiff “is entitled to have paid in due course of administration upon the amount of the judgment, the whole thereof, or so much thereof as may be available therefor, out of and from the funds of the estate”; that defendant Crowson, as administrator, “is hereby ordered, adjudged and directed to pay in due course of administration to the plaintiff out of the funds of the estate of said decedent the amount of said judgment, or such portion thereof as the said funds may be available for said purpose”; and that the vendor’s lien be enforced against said lot for any deficiency remaining after the available funds of the estate shall have been applied in payment of the judgment. The defendant Crow-son, individually and as administrator, has appealed from the judgment.

The judgment referred to in the claim against the estate of decedent was rendered in an action brought by the plaintiff herein against Crowson individually, as sole defendant, to foreclose the alleged vendor’s lien involved in this action. The judgment was reversed on the ground that the plaintiff had not presented his claim to the administrator of the estate for allowance. (Hinkel v. Crowson, 188 Cal. 378 [ 206 Pac. 58 ].) This action was thereafter commenced and during the trial thereof the former action was dismissed.

[1] The complaint is entitled, “Complaint to Establish and Foreclose a Vendor’s Lien,” but it is not what the complaint is called that determines the character of the action, but the allegations thereof. [2] The prayer is, among other things, for a sale of the lot in question and the application of the proceeds toward the discharge of the lien and judgment for the deficiency, if any, payable in due course of administration. A judgment to that effect would be in violation of the terms of section 1475 of the Code of Civil Procedure, which, in case of a claim against an estate secured by a lien on the homestead selected and recorded prior to the death of the decedent, provides: “If the funds of the estate be adequate to pay all claims against the estate, the claims so secured must be paid out of such funds. If

[5] The note recites: “This note is secured by a mortgage bearing even date herewith.” The complaint alleges, however, and the plaintiff testified that the note was not secured. The plaintiff testified that the decedent agreed to secure the note by a trust deed, but that no such deed was ever executed. It has been held that a seller of real property waives his vendor’s lien thereon for the selling price thereof by accepting security for the amount thereof. (Jones v. Allert, 161 Cal. 234 , 237 [ 118 Pac. 794 ].) No case has been found, however, which holds that an unexecuted agreement to accept such security destroys the vendor’s lien. Where the vendee has agreed to give but has not given security for the purchase price of real property, the price “remains . . . unsecured otherwise than by the per

[6] The appellant contends that the promissory note was never delivered. The note is dated November 27, 1914. Plaintiff testified that he left his home in Alameda County for Chicago November 29, 1914; that he did not have the note at that time; that he returned home about six weeks later; that on his return home he found the promissory note among his papers in his desk in his home; that he never knew how the note got there; that the signature to the note is in the handwriting of the decedent, and that the decedent made seventeen monthly payments on the note of $30 each. In answer to a question on 'cross-examination as to why he did not get the note before delivering the deed to decedent, the plaintiff replied: “I had to go to Chicago on only one day’s notice, and then I left it all to Rena to fix this thing, and he fixed it.” Rena Haunt testified: “At the time I was chauffeur for Mr. Hinkel. One day he gave me instructions to take some papers to Mrs. Florence Hinkel. ... I took those papers to Mrs. Florence Hinkel, as Mr. Hinkel told me to do. ... I don’t know exactly what they was. There was two or three papers together, in regard to the sale of a house where she was living. ... I gave them to Mrs. Florence Hinkel. ... I never saw them again. I was supposed to go and get them back about a week after, but I never did. ... I told her that she have those signed and recorded and send them back to Mr. Hinkel. ... I got them (the papers) on the morning before Mr. Hinkel left for Chicago, a day or two before. ... I know that those papers were in regard to the sale of the house.” The placing, by some person, of the promissory note, signed by the decedent, in the plaintiff’s desk and the fact that the decedent thereafter made seventeen monthly payments in accordance with the terms of the instrument warrant the inference that the decedent intentionally delivered the note into the possession of the plaintiff, even though it was not delivered to him personally by her. It was sufficient if she delivered it to some person for him and that such person placed it among plaintiff’s papers in his desk.

[7] Appellant further contends that the court did not find that the note was delivered to plaintiff. The complaint

It is urged that plaintiff’s cause of action was barred by the statute of limitations at the time the complaint herein was filed. [8] The statute did not begin to run against installments falling due after the death of the decedent until an administrator was appointed, January 3, 1921. (11 Cal. Jur. 754; 16 Cal. Jur. 562; In re Bullard, 116 Cal. 355 , 357 [ 48 Pac. 219 ].) [9] “A party having a cause of action against the estate of a deceased person is not bound to cause administration to be had.” (Davis v. Hart, 123 Cal. 384 , 388 [ 55 Pac. 1060 ]; Churchill v. Woodworth, 148 Cal. 669 , 673 [ 113 Am. St. Rep. 324 , 84 Pac. 155 ].) The note provides that if any installment “is not paid within ninety days after the same becomes due” the whole of the unpaid principal and interest “shall forthwith 'become due and payable, at the election of the holder of this note.” In the former action referred to herein, commenced August 23, 1917, the complaint alleged that, because of defaults in payments which had become due, “plaintiff . . . elected and so declared the whole of said principal sum, together with all interest thereon, due and payable.” Appellant contends that such election set the statute in motion and that, therefore, the whole of the promissory note became barred at the end of four years thereafter. [10] Notwithstanding such election, it was still within the power of the plaintiff to waive the default, and, as against a subsequent action, the statute of limitations ran only from the maturity of installments as they fell due. (California Sav. etc. Soc. v. Culver, 127 Cal. 107 , 112 [ 59 Pac. 292 ]; Moore v. Russell, 133 Cal. 297 , 300 [ 85 Am. St. Rep. 166 , 65 Pac. 624 ]; Keeler v. Baird, 48 Cal. App. 29 , 33 [ 191 Pac. 563 ].) Further, as stated, the statute did not begin to run against any of such installments which fell due after the death of the decedent until the appointment of an administrator.

[11] By proceedings under section 1723 of the Code of Civil Procedure, the lot in question was, on May 7, 1917, set apart to Crowson as the surviving husband of decedent.

[12] Appellant contends that plaintiff is estopped to recover any sum out of the funds of the estate, because in the complaint in the former action he stated: “Said plaintiff hereby expressly waives all recourse, claim and demand, under and by virtue of said vendor’s lien and said promissory note, against any and all property of the estate of the said Florence G. Crowson, deceased, . . . other than the real property described in the first paragraph of said complaint,” the lot involved herein. In that action the plaintiff proceeded upon the mistaken theory that the law permitted the foreclosure of his vendor’s lien without first presenting the claim secured thereby for allowance and payment out of the other assets of the estate. On appeal it was held that this could not be done. (Hinkel v. Crowson, supra.) Since such a claim had not been presented before the complaint in that action was filed, plaintiff was put to the necessity of dismissing the action. The alleged waiver was an attempt to exercise the option given a lien claimant by section 1500 of the Code of Civil Procedure, which provides that a lien may be enforced against the property of an estate subject thereto, without presenting the claim for allowance, “where all recourse against any other property of the estate is expressly waived in the complaint,” the plaintiff apparently

[14] The answer alleges that the decedent was the wife of Lewis Hinkel, the son of plaintiff, until the son’s death on November 8, 1913; that the lot in question and other lots were purchased by the plaintiff and his son, as co-partners, and the title thereto taken in the name of the plaintiff; that “plaintiff promised to give and convey the said lot of land described in the complaint to said Lewis and his wife Florence as and for their home, and thereupon said Lewis built a residence thereon for himself and his wife” and went into possession thereof and resided therein until the death of Lewis; that thereafter Florence held exclusive possession thereof until the time of her death; and that the conveyance involved herein was intended as a gift. It is contended that the plaintiff made an oral gift of the lot to his son and, apparently, that the conveyance to decedent was made for the purpose of completing the gift. It would require convincing evidence to establish that contention in the face of decedent’s execution of the promissory note and her payment of the installments as they fell due thereon for so many months. The plaintiff testified that he purchased and paid for all the lots mentioned; that his son had charge of the building of houses

[15] Section 1498 of the Code of Civil Procedure provides that when a claim is rejected “written notice of such rejection shall be given by the executor or administrator to the holder of such claim, . . . and the holder must bring suit in the proper court against the executor or administrator within three months after the date of service of such notice if the claim be then due.” Appellant contends that this action was not commenced within the time prescribed by that section. The claim upon which the suit is based was neither allowed nor expressly rejected by the administrator. Neither was any notice of rejection served upon the plaintiff. Under the provisions of section 1496 of the Code of Civil Procedure the plaintiff elected to treat the failure of the administrator to allow the claim as a rejection thereof.

[16] It is urged that the judgment against the estate “only establishes the claim in the same manner as if it had been allowed by the administrator” and that he or any other heir of the deceased “can contest the claim even after a judgment and affirmance on appeal and have a jury trial” of the question of its validity; citing section 1504 of the Code of Civil Procedure and Estate of Hellier, 169 Cal. 77 [ 145 Pac. 1008 ], and that, therefore, the judgment is erroneous in directing a sale of the lot in the event of a deficiency, after applying available funds of the estate toward the satisfaction of the judgment. The latter provision in the judgment does not preclude a contest of the claim by any person who otherwise may have the right to contest it. No good reason appears for requiring the plaintiff to prosecute two actions for the collection of a single debt. The decree makes provision for further proceedings, in the event of a deficiency of assets of the estate, as follows: “It is further ordered, adjudged and decreed, that in the event that the funds of the said estate shall prove insufficient to pay the whole of the amount of this judgment, the plaintiff shall be at liberty to apply, at the foot of the judgment, for further directions.” In Moore v. Russell, 133 Cal. 297 [ 85 Am. St. Rep. 166 , 65 Pac. 624 ], the claim of the plaintiff for the amount of a promissory note secured by a mortgage, executed by the decedent, was rejected by the administrator and suit was brought thereon. Judgment in favor of the plaintiff establishing the claim, foreclosing the mortgage and providing for a recovery against the administrator for any deficiency after sale of the mortgaged premises, to be paid in due course of administration, was affirmed. No reason appears for applying a different rule here, and no authority is cited in support of appellants’ contention. The same objections which are made here could have been made with equal force to the judgment in the case cited.

Appellants argue more than forty alleged errors. It would require an opinion of undue length to discuss them all specifically. Most of them are substantially covered

The judgment is affirmed.

Plummer, J., and Hart, J., concurred.

A petition by appellants to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 11, 1927.