Vandalia Whig and Illinois intelligencer. [volume] (Vandalia, Ill.) 1832-183?, 1833-03-20

| Opinion ofthe Court by Mr.. Justice Lockwood. This
was scire dc1s issued against the defendant Marks
as administration, to obtain sale of mortgaged pre-
misses, pursuant to the Statute, passed II Of Jan. 1895
lentitled "an act concerning Judgements and Execu-
tons" The mortgage was executed to the plaintiff
by the defendants inesae. Upon the return of the
scire aca, the defendant pleaded in abatement that
the scire iacias was issued within year after the
death OF the ntestate To this plea the plaintiff de-
INJURED, and the defendant Joined in demurrer.
ION the hearing of the in the circuit
court, the demurrer overruled and the
plea sustained, and there upon judgement was
given that the scire acIas be abated and quashed
70 reverse this judgement writ of error has been
brought to this Court.
The only question presented by the pleadings is,
whether the 9th section of the act passed 23d JAM
829, relative to evils and testamens executors and
administrators and the settlement of Estates forbds
the suing out of a scire facias mortgage until
after the expiration of year after the taking of
letters of administrations BY the 18th section of
the act concerning judgements and executions, pass
ed 7th jan, 1925, it is provided in substance that
II default be made in the payment of any of
money secured by mortgage lands and tenements
duly executed and recorded, it shall he lawful for the
martga&ee to sne ont writ OF scire acias from the
Clerks office of the circuit court of the county in
which said morgaged premises may be situated, d-
rccted NC. requiring the Sheriff to make known to
the mortgasor, or if he be dead, to his heirs,
tors or administrators, o shew cause, if any they
have, why judgment should not be rendered for such
sum OF money as may be due by virtue of such mort
gage; and upon appearance, the court is authorized
to give Judgment. But if the scire acias returned
nt an alias scire facas may be issued and if it be
returned mini, if the defendant appear and plead,
or make default, the court may proceed to give udg-
ment with costs and also that said mortgaged prem
ses be sold to satisfy such Judgment and may award
or direct special writ Of leri dcias for that pur
pose: ProUided, however, that the judgment afore-
said shall create no lien any other lands tene
ments than the mortgaged premises nor shall any 9th
real estate personal property of the mortgagor
be liable to satisfy the same
The scrc facias authorizedby the above section of
the judgment and execution law is not an action in
the ordinary acceptaion Of the term, but is pro-
ceeding rem. The judgment does not bind the adj
docs effect the least degree that
portion of the nteStates estate that is committed to
his charge. If mortgage to be delayed until
year after letters Of Administrator taken
OUT it would often happen that years would intervene
before he could enforce bis lien. No such consequence
could have been intended by the Legislature.
Administration except in of insolvenc y, only
extends to personal estate and the object in forbid
ing the bringing of any action against admisistra-
tor for year after the taking out Of letters of adj
Ininistration, to enable the administrator to as
certain whether the estate of the ihtestate nsolv
emit which event debts arc to be cassed, and paid
pro rata The reason for giving this time to ascer-
tain the situation of the estate does not apply to
mortgage creditor, for he has specific lieh the
morgaged premises, which is not effected by the SOL
vency or insolvency Of the intestate's estate. We
are, Therefore, of the opinion that the demurrer to
the defendants plea ought to have been sustained.
ltwas commended on the argument of this cause,
that the scre cas does not set out the mortgage in
full. This objection cannot be taken on demurrer
to plea in abatement.
The Judgment of the court below il reversed, with
costs, and the remained for further proceedings.
BIGELOW, For the Plaintiff in
FORD, For the Defendant in error.