Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-04-18
Continued from Second Page

money shall have been actually so az
piled, and that 10 lien against any estate
shall be affected by the statute OF limita
tons pending the proceedings for the
settlement of such estate.
Compiled Laws 1900, See. 2943
Itseems to us that the language used
in this section taken ia connection with
the lan guage used in the sections above
quoted is conclusive of the question. 1t
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. 1t has been claimed
that the words valid Claim used in the
last section must he held to mean a claim
against the deceased which has been
duly presented i'll the manner required
by tie provisions heretofore cited. We
are no, 90 posed t" give to the words
used t. trained and technical construc-
ton cnntended tor. in view OF the fur
Their p. ision Of the same Act requiring
that it shall he literally construed TO the
end that Justice Ioay he done all parties
Compiled La VS.. 1900, Sec. 3oo5,
The Legislature by the use "f the
words valid claja against the estate Of
the deceasra,' construed with The other
language used in the same section.
clearly intended ts4at lands sold by the
admin; Strator which were justly charg
able with The pa nent of IA mortgage lien
should he subject II sale Invested of
such lien, only upon the actual appliva-
ton O. tla proceeds as specified BY
this provision valuable property charged
with such liens may lie used for the pur-
poses of administ ration without impair
ing any of the rights OF the MORTGAGE.
To place different construction on the
! status requires that we should not only
ignore the last clause contained in the
section which declares that mo lien
against any estate shall be affected by
the statute of Limitation pending thu
proceedings for the settlement OF
such estate but must hold in direct
CONFIRMATION thereof that the failure OF
the MOI tgagee to present his lien within
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 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:
Action TO forernsc mortgages or to en-
! force other collateral securities or liens
are d >tnct from the allowance of The
! debts so secured: and since, generally
probate courts have no jurisdiction OF
such actions, the limitations and condit-
ions imposed on the parties enforcing
the payment of simple debts against ex
ecuters or administrators are not apple
able. Thus. mortga or vendors liens
may generally be forclosed without hav-
ing proved the debt i'll the probate court
or making the affidavit Of claimants pre-
senting demands against admins
| traitors or proceedings within the TIM
required for the presentation of claim
against deceased persons; nor, on TIL
other hand, does the probate of the CLAIM
affect the hel ler'S right Of foreclosure
For the same reason the right OF fore
closure gives the holder he remea.
against the general assets of the estate
and does not give such a claim prefer
ence thereto. and his claim in this re
! spect for any deficiency is barred lik
any other claim. unless he presents til
same in proper time. ~
Weeruer's American Law of Ae
ministrati on, Sc. 400, s Am. 4 EN-
Ency. Of Law. Fad Ed. 1910. Sc
also authorities cited in foot no Il
to text of the above authorities.
The Supreme Court of Washington
discussing the same question, under
statute with provisions similar i'll man
respects to our own, says: LAS to II
first objection raised by the defendan
we think that the plaintiffs rights undt
his mortgage, as to the lands mortgage
were not barred by failure to presel
;, his claim secured thereby to the exec
: trix; that the failure to present his clai
would only operate to prevent him fro
4 making any deficiency that might !
main after exhausting the mortgag
property out of the testator's other
tate.'
Scammon VS.. Ward, % Pac, 438.
It is necessary to notice briefly o
= other question raised. It is claimed til
the facts shown by the complaint do I
constitute sufficient filing or prese
ment of claim to save the bar of tn
provision of the Act which declares tt
no holder of any claim against an est
shall maintain any action thereon uni
it shall have been first filed and unt
the conditions specified.
Compiled Laws, 1900. Sec. 1899.
The point Of this contention is tina
strict compliance with the provisions
this section requires that the appel
should have attached copies of the n
and mortgage to his claim, or the st;
ment thereof. as provided for by sect
1896, supra. This contention is corr
if we are required to construe the wo
may" aud "shall'' use in the