Jordan

The appeal in this case is from a decree of foreclosure of a mortgage which was given by one Ellen Job-son on the second day of March, 1872, to secure payment to *80 the plaintiff of the promissory note described in the pleadings. The mortgagor (Ellen Jobson) died December 28, 1872, leaving a will which was admitted to. probate; and letters testamentary were issued to the defendants, who qualified and entered on the discharge of their duties, and caused publication of notice to creditors of the estate to present their claims for allowance according to law. The first publication was made on February 21, 1873.

The mortgage claim in controversy was never presented to the executors, or any of them, but on. the 30th of April, 1877, plaintiff commenced the action in hand to foreclose the mortgage. In the complaint, recourse to any property belonging to the estate other than, that included in the mortgage is waived; but the executors claim that the plaintiff’s right of action to foreclosure is forever barred by reason of the failure to present the mortgage debt as a claim against the estate, and that is the question.

At the time of the death of the mortgagor, of the appointment of the…

I concur. The claim was never presented to the executors, and the right of plaintiff to' sue accrued, if ever, at or subsequent to the date (March 2, 1875) when the mortgage debt became due. But as the law was at that date, and ever since has been, the plaintiff is expressly prohibited from maintaining the action by reason of the failure to present the claim. Nor—even assuming that the changes in the statutes are other than such as relate to the remedy—can plaintiff assert that the obligation of the contract has been impaired. At the time when the note and mortgage were executed, the law declared that no action should be maintained upon a claim which should not be presented to the executor and administrator. The plaintiff contracted with reference to the then existing law, which was substantially the same as the law in operation when the mortgage debt became due. For a portion of the period intervening between the two dates above mentioned, the statute authorized the foreclosure of a mortgage simply, although the claim which it was given to secure was not presented; but the plaintiff did not thereby acquire a vested right to maintain this action.