Luse v. Webster

Mr. Justice Burnett delivered the opinion of the court. 1. There is no substantial dispute about the facts involved in this litigation. The principal question to be determined is whether the Circuit and County Courts were right in disregarding the claims of Luse and Blood. Section 16, L. O. L., reads thus: “If, when the cause of action shall accure against any person who shall be out of the state or concealed therein, such action may be commenced within the terms herein respectively limited, after the return of such person into the state, or the time of his concealment; and if, after such cause of action shall have accrued, such person shall depart from and reside out of this state, or conceal himself, the time of his absence or concealment shall not be deemed or taken as any part of the time limited for the commencement of such action.” Section 18, L. O. L., provides as follows: “If a person entitled to bring an action die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his personal representatives after the expiration of the time, and within one year from his death. If a person against whom an action may be brought, die before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against Ms personal representatives after the expiration of that time, and within one year after the issuing [493] of letters testamentary or of administration; but no suit or action for collection of any claim against the estate of a decedent may be maintained, when no letters testamentary or of administration shall have been issued before the expiration of six years after the death of the decedent, unless begun before the expiration of six months after the taking effect of this act.” It is plain that if Webster had not died and had never returned to the State of Oregon the statute of limitations would not yet have run against the notes in question; but, his death having been admitted, and it having been shown that it occurred on October 7, 1904, the situation is controlled by the last clause of Section 18, L. O. L., saying: “But no suit or action for collection of any claim against the estate of a decedent may be maintained, when no letters testamentary or of administration shall have been issued before the expiration of six years after the death of the decedent, unless begun before the expiration of six months after the taking effect of this act.” That excerpt was engrafted upon Section 18 as an amendment by the legislative assembly in 1907. More than six years having elapsed between the death of the decedent on October 7, 1904, and April 23, 1912, when the letters of administration were issued, the debts to Luse and Blood were barred under the conditions- of Section 18 just quoted. It is stated in emphatic terms in Section 1241, L. O. L., that: “No claim shall be allowed by the executor or administrator or the County Court which is barred by the statute of limitations.” As a matter of law, this disposes of the the Luse and Blood claims adversely to them. [494] 2. The administratrix apparently concedes that this would he the case if she had been sued in an action at law to recover the money due on the claims, or if a suit had been instituted against her to foreclose the Luse mortgage. She seeks, however, to avoid this conclusion by saying, in effect, that her operations in the County Court were neither an action at law nor a suit in equity, but a mere proceeding which is not controlled by the statute of limitations. We read, however, in Section 1135, L. O. L.: “There are no particular pleadings or forms thereof in the County Court, when exercising the jurisdiction of probate matters * * other than as provided in this title. The mode of proceeding is in the nature of that in a suit in equity as distinguished from an action at law. The proceedings are in writing, and are had upon the application of a party or the order of the court. The court exercises its powers by means of— (1) A citation to the party; (2) an affidavit or the verified petition or statement a party; (3) the subpoena to a witness; (4) orders and decrees; (5) an execution or warrant to enforce them. ’ ’ The statute thus makes the proceedings- in the County Court sitting in probate substantially a suit in equity, and while, as a court of chancery, it is not strictly bound by the statute of limitations, except, on the question here involved, as stated in Section 1241, L. O. L., still it proceeds in- analogy to the same, and will withhold its aid to enforce a stale claim. 3. The utmost that could be accomplished in any event in this litigation, or, for that matter, in any other against a nonresident, would be to subject to the payment of these debts the property belonging to the' debtor within this state. That could have been effected, and was all that could have been done, at any [495] time after the departure of Webster from the state in 1896 or 1897. "Whether proceedings were instituted before or after his death, the end to be attained is the same. Independent of the statute, therefore, the County Court was right in its action disregarding the Blood and Luse claims on the ground that they were stale under all the circumstances; for at the least calculation the holders of those demands allowed 15 years to pass from the departure of Webster to the date of issuing the letters of administration without talring any steps whatever to enforce payment. Leaving the state law of limitations out of consideration, the County Court, exercising its equity powers, was clearly within the bounds of its authority when it ignored these notes as stale. The principle is laid down by Mr. Justice Moore in Loomis v. Rosenthal, 34 Or. 585 (57 Pac. 55), the syllabus on this point reading thus: “While the statute of limitations is not a defense in equity, still the claimant must have exercised reasonable diligence in asserting his claim after ascertaining the fraud complained of, or after learning of facts which would put a person of ordinary intelligence on inquiry. ’ ’ Other authorities in this state are Sedlak v. Sedlak, 14 Or. 540 (13 Pac. 452) and Raymond v. Flavel, 27 Or. 219 (40 Pac. 158). Similar doctrine is enunciated in Graham v. Brock, 212 Ill. 579 (72 N. E. 825, 103 Am. St. Rep. 248); Goodrum v. Mitchell, 236 Ill. 183 (86 N. E. 217); Cohen v. Tuff (Del.), 86 Atl. 833; Matthews v. Peterson, 150 N. C. 132 (63 S. E. 722). 4. So far as the taxes and street improvements are concerned, they appear to have accrued long after the death of Webster, and are enforceable by appropriate proceedings other than administration. They do not necessarily concern the administratrix, and no one can [496] be injured by tbe treatment these claims received in this proceeding. Otherwise an estate might be kept open indefinitely, for it is morally certain that taxes will always accrue. The decrees complained of were jnst and equitable, and are therefore affirmed. Affirmed.