The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1873-07-16
Supreme COurt-ln BancO.-OcfOber
Term. ISs2.
BEFORE ALLEN. C. j. HARTwELL AND wIDENANN, J-J.,
IN EQUrTY-APPEAL FROM DECREE OF
TEE CHANCELLOR

James Campbell and al. rs. KdHaaiopiH and al.
The complainants assignees of a mortgage of
real estate, brought bill of foreclosure against
the morigagor's heirs, who pleaded the Probate
Act Of 1865 in bar. The Act is entitled "An
Act to limit the time within which claims of
creditors against the estates Of deceased persons
shall be presented and suits be commenced on
rejected claims" II requires executors and ad-
ministrators to publish notice to all creditors to
present their claims, duly authenticated and with
the proper vouchers if any exist, even if the claim
be secured by mortgage on real estate y and de-
clares that, " if such claims be not presented
within six months from the day OF the first pub
licaiion Of the notice, or within SIX months from
the day they fall due they shall be forever barred
and the executor or administrator shall not be
authorized to pay them !" also, that il the claim
be rejected by the executor or administrator or
by the Judge of Probate, n suit must be brought
upon it against the executor or administrator
within two months after such rejection, or, with
in two months after the same becomes due, or it
will be forever barred The defense was held to
be good and the complainants appealed.
a. F. Judd for Compainants.
L. McCully for Respondents.
HAErwEL1, J. delivered the decision of the Court
as follows:
The Act in allowing SO short q time to present
and sue claims, is highly penal in its effects and
must not be extended beyond its clear and rea-
sonable meaning 3 Lansing, %, and cases there
cited. Claims against executors or administra-
tors are barred if not presented within the time
prescribed; but it does not follow that claims
against the land on contracts made expressly
binding on heirs, are barred as against the land
itself, or the heirs. A mortgage deed of land
conveys to the mortgage his heirs and assigns,
vested right in the mOrtgaged land, deieaslble only
on performance Of the condition named in the
deed unless affected by adverse occupancy. This
right is not affected by the administrators release
from obligation to pay the note 1t is intended to
secure.
The Act refers to payment" Of claims that
are due"
The remedy on the mortgage note against the
administrator may be lost and the remedy against
the land by foreclosure of the mortgage may re-
main, for they are entirely distinct. We do not
think the Act was intended to diVest mortgages
of their titles or Of their remedies against the
land by foreclosure. The counsel for the respon-
dents contends for a different construction Of the
Statute 1t is true that it refers TO all claims,
even if they are secured by mortgage,-but as
the mortgage and note are two distinct securi-
ties, and nothing but payment of the debt will
discharge the mortgage, it follows that the mort
gage is not barred, as the Statute only refers to
claims secured by mortgage, and not to the mort
gage ITSELF
Cross on Liens, -; Pars. Coutr. 81, 100;
Pars. Nero. Law, 25O; 2 Wash. Real prop. led.
1868 l73, 225; Redfeld's Wills, 252, n.
Potter's Dwarris on Stat l64, 472; l McAllister,
49l; 10 Pick. 537; Gray 439 f; s Met. SO
% Barb. 2S4; 26 Me. 333; IA n. Y. 81; 2
Black 452; 4 Mason 80