Jordan

The mortgage, for the foreclosure of which this action was brought, was executed in March, 1872, and was made payable three years after its date. The mortgager died in December, 1872. Administration upon her estate was had. Notice to creditors was published in February, 1873. The claim in suit was never presented to the representative of the estate for allowance, but the plaintiff, in 1877, commenced the present action, and in the complaint expressly waived all recourse against any other property of the estate than that embraced in the mortgage.

According to the law in force at the time the mortgage was executed, presentation of all claims to the representative of the estate for allowance was necessary; but in January, 1873, it was provided by statute that a.mortgage claim need not be presented where all recourse against all other than the mortgaged property is expressly waived in the complaint. Such was the law at the time the notice was given, and such it remained until July, 1874. According to the law, therefore, under which the notice was given, the plaintiff was not required to present its claim for allowance within the time mentioned in the notice, nor at all. In July,…