Schmidt v. Grenzow

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 [303] lecting 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.