I find myself unable to agree with the majority and therefore respectfully dissent. *Page 368
The claim was on a promissory note. It was duly filed. The administrator recognized it and made many payments, reducing it from approximately $3,000, to somewhere around $1,100. In addition to this, the administrator applied for authority to sell Monona County real estate, and set up this claim as a valid existing claim and as reason for making application for the sale of the real estate. The court, relying upon the application of the administrator, did order the real estate to be sold.
In the case of Wilson v. McElroy, 83 Iowa 593, this court, at page 594, 50 N.W. 55, at page 56, said:
"The evidence, beyond controversy, establishes that the promissory notes constituted a just and lawful claim against the estate, which ought to be allowed, unless the proceeding is barred by the statute of limitations.
"In our opinion defendant cannot, in view of the facts of the case, invoke the statute to defeat the action. The evidence shows that after the claim was filed for allowance by the court the defendant paid the plaintiff five hundred dollars thereon, and took a receipt showing such payment. He offered to satisfy the whole claim if the plaintiff would accept real estate in payment thereof. He reported to the court the notes as being a valid claim against the estate, and in a petition for the sale of real estate to pay debts the plaintiff's claim is mentioned and referred to as valid and subsisting. We think, in consideration of these facts, the plaintiff's claim is not barred by the statute for these reasons. * * * Surely, the defendant would not be permitted to withdraw his answer, admitting the allegations of the petition, and file an answer setting up the statute of limitations, on the ground that, as there was no original notice put in the hands of the sheriff, the statute continued to run. In the case before us the defendant in effect approved the plaintiff's claim in his report to the court, in his petition to sell lands, and in his written indorsement of payment made upon the notes. These acts, in our opinion, are express approvals of the claim, and comply with the requirements of Code, section 2408. * * * Surely, after having made payment upon the plaintiff's claim, and recognized it in his report and petition as subsisting and valid, and after offering to pay in real estate, thus leading the plaintiff to believe it was approved and *Page 369 admitted, and inducing him to act accordingly, the defendant is estopped now to set up the statute of limitations to defeat the action."
The majority rely to a great extent upon the case of Lucas v. Ruden, 220 Iowa 494, 260 N.W. 60. In that case I dissented, but in my humble judgment the case at bar goes even further than the case of Lucas v. Ruden, supra. Here we find an administrator making several payments upon the claim, a recognition and approval of the claim by filing an application with the court to sell real estate in order to pay the claim.
I would affirm the lower court.