[DOWNLOAD] "Leffek v. Luedeman" by Supreme Court of Montana # eBook PDF Kindle ePub Free

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eBook details

• Title: Leffek v. Luedeman
• Author : Supreme Court of Montana
• Release Date : January 01, 1933
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 67 KB

Description

Mortgages ? Foreclosure ? Actions Against Executors or Administrators ? Limitations of Actions ? Failure to Renew Mortgage Note ? Declarations of Decedents ? When Admissible in Evidence ? Statute ? Insolvency of Estate ? Right of Administrator to Attack Validity of Mortgage ? Judgment ? Statutory Construction ? Adoption of Statute from Foreign State ? Rule ? Promissory Notes Payable to Order ? Assignment Without Endorsement ? Ownership. Executors and Administrators ? Actions Against ? Witnesses ? Declarations of Decedents ? When Inadmissible ? Purpose of Statute. 1. The two-fold purpose of section 10535, subdivision 3, Revised Codes 1921, prohibiting a party to an action against an executor or administrator from testifying as to direct transactions or oral communications between the witness and the deceased, is to prevent such party from gaining an undue advantage over the defendant, - Page 458 and to remove the temptation to commit perjury by testifying to matters which in all probability cannot be denied by a living person. Same ? Mortgages ? Foreclosure ? Limitations of Actions ? Letters of Decedent Acknowledging Debt ? Admissibility in Evidence. 2. In an action against an administrator to foreclose a real estate mortgage of his decedent, apparently barred by the statute of limitations, testimony of plaintiff as to the receipt of letters, relied upon as an acknowledgment of the mortgage indebtedness, from decedent during his lifetime, held not incompetent as falling within the prohibition of section 10535, supra, making testimony as to direct transactions or oral communications with deceased inadmissible. Same ? Identification of Decedents Signature by Defendant Administrator ? Admissibility of Testimony. 3. The testimony of an administrator, defendant in an action to foreclose a mortgage executed by his decedent, that, in his opinion, based on his knowledge of decedents handwriting, the latters signature on letters introduced by plaintiff for the purpose of showing that the writer had acknowledged the indebtedness nine years after maturity of the mortgage notes was genuine, held properly admitted, as against the objection that under section 10535, supra, it was inadmissible. Same ? Letters Written by Decedent in Acknowledgment of Debt After Maturity of Notes ? Admissibility in Evidence to Defeat Defense of Statute of Limitations. 4. Letters written by a mortgagor nine and ten years after maturity of promissory notes secured thereby, in effect stating that the debtor was negotiating for money to make settlement as promised, was going to pay and the mortgagee would be the first to receive his money, and again that he expected to be in a position to make settlement the following summer, held a sufficient acknowledgment or a new promise to interrupt the running of the bar of the statute of limitations. Promissory Notes Payable to Order ? Assignment Without Endorsement ? Ownership. 5. Upon transfer of a mortgage note payable to order without endorsement, title vested in the transferee; hence where the fact that the plaintiff assignee in his action to foreclose the mortgage bought the note from the mortgagee was uncontradicted and he produced it at the trial, a finding that he had failed to produce competent evidence of its ownership was error. Mortgages ? Foreclosure ? As Between Parties Mortgage Good After Eight Years from Maturity of Note. 6. As between the mortgagor of real property and the mortgagee, if the debt for which the mortgage is given be kept alive the mortgage is good even after the expiration of eight years from the maturity of the note or obligation. (Sec. 8267, Rev. Codes 1921, prior to amendment by Chapter 104, Laws 1933.) Executors and Administrators ? Actions Against ? Insolvent Estates ? Right to Attack Validity of Mortgage of Decedent for Failure to File Renewal Affidavit. 7. An administrator of an insolvent estate may, on behalf of creditors, who cannot under the law secure a specific lien upon the

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