Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1900-03-15
SEALS VS.. CHADWICK CASE.

Below will be found the full text OF @
the opinion OF the Court in Banc in
the suit of John Doe, on the demise "
of Walter e. Seals, vs. Richard Roe, $
casual eiector, and George A. Chad \
wick, tenant in possession. The ques- Q
tions of law arise on a case stated in c
an action of ejectment directed by the I
Superior Court OF New Castle county
to be heard by the Court in Banc. {
The opinion, which was delivered yes s
terday by Associate Justice Spruance, ,
was as follows: IN
The material facts set forth in the
case stated upon which arise the ques-
tions of law presented for our con-
sideration, are as follows:
Martin Seals, being seized in fee
simple of a lot of land situate in New
Castle county, with Louisa Seals his
wife, in 1873 executed mortgages upon
said premises to the City Building and
Loan ASSOCIATION, conditioned for the
payment Of debt of 800, which mort
gage was thereupon duly recorded.
The said Martin Seals, died in 1850
selzed of said premises, and interstate,
leaving to survive him his said wife,
and three children, his only heirs at
law, 10 whom the said premises de-
seconded under the intestate laws OF
this State, subject to the lien OF the
! said mortgage.
F, Letters of administration upon the
estate of tho said intestate we're duly
granted by the register of wills OF New
Castle county to William Seals.
Tho said mortgage, dobt being due
and unpaid, the said mortgagee sued
out of tho Superior Court for New
Castle county to the May term 1881 a
| writ of scire facias upon the said mort
gage against the said William Seals,
administrator Of the said Martin Seals,
deceased, and Louisa Seals, surviving
mortgagor, and terre tenant. The
sheriff made return to the said writ
as follows: '.Made known to William
Seals, administrator of Martin Seals,
deceased, personally, April Goth, 1851,
and mortus est as to Louisa Seals, SUI
viving mortgagor.
Judgment was rendered at the May
term 1881 Tor the sum of 1886 81 against
the said administrator of the said
mortgagor.
A writ of levari facias was after
wards issued on said Judgment under
which the sheriff sold and conveyed
the said mortgaged premises to the
purchaser, The said Building and Loan
, Association, and afterwards, in 1894,
the said association conveyed all of its
i right, title and interest in said premises
, to the said defendant, George A. Chad
wick, who has ever since been in pos
session of the same
I The said action of ejectment was
brought by the said plaintiff, Walter
: E, Seals, one OF the three children and
:. heirs at law of the said intestate
Martin Seals, for the recovery of tho
q possession one equal undivided third
< part of the said mortgaged promises.
q The question presented for our con.
1 sideration is, whether, by the law OF
;, this State, the said plaintiff, Walter
3 j.. Seals, should have been made q
i party defendant to the said action OF
n scire facias upon the said mortgage, IN
order that his equity of redemption in
j. said mortgaeed premises should DC
n foreclosed or barred. .
d The proceeding by scire facias fol
i. the foreclosure of mortgages and the
!, sale of mortgaged land was first giver
a. to the counties now composing this
"A State. by the act entitled AN Act TO
ii taking lands. in execution for paymen
- of debts" enacted during the admins
40 tration of Lieutenant Governor Patrici
- Gordon, which extended from 1726 t.
"a 1876 Il Laws of Delaware. CHAP. As
nj D. 1909, Digest Of 1872, p. 2O4.
nf Section of said act provides, tina
70 when default shall be made by an,
h. mortgagor oil mortgagors, or by his
adj her, or their heirs, executors, admins
as traitors or assigns, in payment OF tn
of mortgage money, or performance OF th
a. condition or conditions which they
ed any of them should have paid or Eel
20 formed, it shall be lawful for the mort
n gage or mortgages and "his, her, c
M their heirs, executors, administrator
AZ and assigns, OF any time after the o.
.as riration of IL months next ensuing
r. the last day wherein the said morteae
ha money ought to be paid, or other col
40. ditions performed, as aforesaid, to 81
ba forth a writ or wits Of soire facias,
ID. recurring the proper officer to mai
rv known to the mortgagor or mortgagor
On his. her, CT their heirs, executors
,aS administrators. that he or they be al
al appear, &C., "to know, il anything h
ant she, or they have to say wherefore Il
no. said mortgaged premises ought not
to- be seized and taken in execution i
the pay ment of the said mortgage money
Dad &c.
in The said section further provides +
,er- Judgment in favor of the plaintiff, tn
dy- he have execution by levari faolas "
ich virtue whereof the said mortgag
HIS premises siluii be honou 80 o>hN
rds aud exposed to sale, and upon sale CO
IAN yeyed to the buyer" &c. ), and tn
his when the land shall be sold as afol
said, the person or persons to who
they shall be sold shall and may nc
and enjoy the same, &C.. clearly d
charged and freed flom all equity a
ZION benefit Of redemption, and all OIL
rved encumbrances made and suffered
the mortgagors. their heirs or assigns
ocal This section remained IN force, wi
+ In ont change, until the coditication
the the laws in 1852, when it was conden:
for in form, but not altered in substan
nro- eycept by the omission OF the clal
cred which restricted the issuing OF
scire facias until the expiration OF
hers months next after the last day
,ial. nointed for the payment of the moi
tiff. or performance Of the other conditio
who As so codified, this law has remail
two without alteration to the present til
was Soc sections 50 to 80. chap. Ill OF
land Codes of 1852 1874 and 1888.
The following are the parts OF
chapter Ill bearing upon tho case
"Section 5F. Upon breach of the
that dition of mortgage OF real estate
, IS non. payment OF the mortgage NOR
tates or non performance OF the conditi
ines, stipulated in such mortgage, at
was times, and in the manner therein !
was yjded the mortgage, his ne
isco, EXECUTORS, administrators or assis
,.,, 4ip,a uffor the Inst