Whitmore v. San Francisco Savings Union , 50 Cal. 145 ( 1875 )


Menu:
  • By the Court, Wallace, C. J.:

    The failure to present the claim against the estate of Whitmore within the time required by the statute did not operate as an extinguishment of the debt, in the sense in which payment or accord and satisfaction would operate. *150In Sichel v. Carillo (42 Cal. 493), we said: “It is well settled with reference to actions for moneys due on contracts, that the statute does not discharge the debt, or in any way extinguish the right or destroy the obligation, but only takes away a remedy. The debt remains unsatisfied and unextinguished. ” Had the statute run during the lifetime of Whitmore, it would, in an action brought against him for a recovery of the demand, have afforded him a defense, not on the ground that the debt itself had become extinguished by the lapse of the statutory period, but that the plaintiff in such action had lost his remedy for its recovery.

    So the statute, requiring the presentation of a claim against the estate within the designated period of time after publication of notice to creditors, in order that it may be ranked among the acknowledged debts of the estate, does not operate an extinguishment or forfeiture of the claim, for want of the required presentation, but affords the estate a defense against an action brought against it to recover the demand.

    If, however, as in this case, the debt be in fact subsisting and unpaid, neither the debtor in his lifetime, nor his estate after his decease, being solvent, can successfully invoke the power of a court of equity to compel the creditor to surrender securities placed in his hands to secure its payment. The recognized maxim of the court is that he who seeks equity must do equity. (Hughes v. Davis, 40 Cal. 117.) The court would doubtless compel the surrender of the securities upon the payment of the debt, or it would, upon the application of the debtor, direct a sale of the securities, and that the overplus, if any, arising from such sale after the payment of the debt, be paid over to the debtor. This would be to do equity. But to compel the creditor to surrender his securities, without payment of the debt, would be inequitable—as much so as to permit the creditor to retain those securities after such payment had been effected.

    Judgment reversed and cause remanded, with directions to sustain the demurrer to the complaint.

Document Info

Docket Number: No. 3583

Citation Numbers: 50 Cal. 145

Judges: Crockett, Wallace

Filed Date: 7/1/1875

Precedential Status: Precedential

Modified Date: 1/12/2023