#### Schmidt and another, Respondents, vs. Grenzow and others, imp., Appellants.

*January 12*

February *1, 1916.*

*Mortgages: Foreclosure: Deficiency judgment against heirs of mortgagor: Contingent claim against decedent.*

1. A judgment for deficiency in a foreclosure action cannot properly be entered against the heirs of a deceased mortgagor where complete administration of his estate has been had and no claim was filed by the mortgagee in the administration proceedings. *Pereles v. Leiser,*119 Wis. 347, followed; *Pereles v. Lei• ser,*138 Wis. 401, distinguished.

2. The sum secured by a mortgage being a fixed amount and due at a definite time in the future, the mere contingency as to whether or not there will be a deficiency after a foreclosure sale does not make the mortgagee’s claim a contingent one, within the meaning of sec. 3858, Stats.

Appeal from a part of a judgment of the circuit court for Green county: George Grimm, Circuit Judge.

*Reversed.*

Action to foreclose a real-estate mortgage of $6,000 securing two notes of $5,000 and $1,000, each, executed by one E. O. Grenzow, since deceased.

Administration on the estate of the mortgagor had been completed before this action was begun, and the sum of $1,762.27 out of his personal estate was assigned to each of the four appellants. At the time of administration the mortgage indebtedness was not due and plaintiffs filed no claim against the estate. The plaintiff *Schmidt*owns the note of $5,000 and .the plaintiff *Babler*is the owner of the $1,000 note. The defendant Mary Legler is liable as an in-dorser of the $1,000 note and does not appeal. In the usual foreclosure judgment the court also ordered a judgment for a deficiency, if any should arise, against the four heirs to the extent of $1,762.27 each. Erom that part of the judgment they appeal.

Eor the appellants there was a brief by *Sprague & Jenksf*
      *302attorneys for *Louise*Grenzow, and *Burr*Sprague, guardian *ad litem*for *Harry L.*Grenzow, *Orpha M.*Grenzow, and *Daisy B. Grenzow j*and oral argument by *Burr Sprague.*

For tbe respondents tbe cause was submitted on tbe brief of *J. L. Sherron.*

ViNJE, J.

Tbis case presents tbe question whether a judgment for a deficiency in a foreclosure action can be properly entered against tbe heirs of a deceased mortgagor where complete administration of bis estate has been bad and no claim has been filed by tbe mortgagee in tbe administration proceedings. Tbe question was answered in tbe negative in *Pereles v.*Leiser, 119 Wis. 347, 96 N. W. 799. The only difference between that case and tbis is that there tbe indebtedness was due at tbe time of administration and here it was not. But a fixed amount due at a definite time in tbe future is not a contingent claim within tbe meaning of sec. 3858, Stats. 1915. Hence, tbe only contingency in tbis case is whether or not there will be a deficiency after sale. That was tbe only contingency in tbe *Pereles Case*and it was argued that such contingency made tbe claim a contingent one. But tbe court held that it did not. It is evident that tbe contingency of a deficiency is no greater where tbe note is not due than where it is due.

If a mortgagee deems himself insecure be can file bis claim against tbe estate. If be does not do so be must be held to rely solely upon tbe security.

The case of *Pereles v.*Leiser, 138 Wis. 401, 120 N. W. 274, is relied upon as authority for tbe right to a deficiency judgment. In that case tbe judgment of tbe circuit court against tbe executor for a deficiency bad to be treated as a valid judgment because unappealed from for two years, and it was held that tbe allowance of such valid judgment against tbe estate by the county court after tbe time for filing claims bad expired was not error, as it was only another way of col*303lecting tbe judgment. Tbe decision in *Pereles v. Leiser,*119 Wis. 347, 96 N. W. 799, rules this case.

*By the Gourt.*— That part of tbe judgment appealed from is reversed.