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

ziug the sale of mortgRged premises, J.
or the payment of a morta2e debt, J
must be heid as intending that those G
having u real and substantial ownership :
IN the mortgage premises, should nave
service of the writ in order that they
may show cause why execution nf the
mortgage debit should not be made Of
their lands. - And again, 1.-THE, con
veyapce of the land by Grant and wife
to Susan Stafford before the suing out
of the scire facias, rendered IL necessary
that she should have been summoned as
terre tenant of the land, in order that
her estate therein might be bound by
the Judgment to be recovered on the
scire facias, and to be taken in execu'
ton for the payment Of the debt. -
As the bill was very properly dis
missed upon the ground that the com.
plainunt was barred of her dover by
Joining with her husband in the con-
yeyanoe of their whole interest and
estate in the land, the above quoted
remarks may be regarded as somewhat
ohiter, but, however this may be, we
emphatically dissent from the PROPOSE
ton that it is necessary in scire faclas
proceedings upon mortgages, to make
parties defendant, or to serve with the
writ, all persons having "a zeal and
substantial ownership in the mortgaged
premises, acquired subsequent to the
mortgage, in order to foreclose and bar
such ownership. ~.
Pennsylvania, Ohio and Illinois are
the only States, SO far as We know,
hayingsstatutes relating to the fore
closure of mortgages by scire facias'
similar to our own.
Section 8 of chapter 1852, 2 Statutes
at Large of Pennsylvania, p 247,
adopted in 1705, is almost identical
with said section Of our own act OF
1726.36.
The following cases we're, under the
said act of 1705:
In Mather VS.. Clark, / Watts, 49l
| 1889 it was held that it was not neces-
sary to give to the terre tenant, hold
| ing the mortgaged premises under con-
veyance by the nortgagor subsequent
to the mortgage, notice of the sclre
facias on the mortgage, or to make
him party to the proceeding IN any
way, in order to make good and valid
sale of the premise under such pro-
ceedings. ,o.o,
Mersey's Appeal, Pa. st. 80, Ils46ll
decided that the said act OF l7O5 DID
not require that the terre tenant, or
purchasers under the mortgagor, should
| be made parties to the proceedings by
scire faoias on mortgage.
In Tyron VS.. Munson, n Pa. ST. $50,
(1875) being a scire facias against tho
administI ator of the mortgagor. the
heirs of the mortgagor not being
parties it was held, that under the said
act of 17O5 the administrator was the
proper party; that it was not necessary
TO make the heirs parties; that the
proceeding was binding on the heirs
that the effect of the sale was to trans.
fer the estate to the purchaser as fully
as it existed in the mortgagor at the
, time of the mortgage, and that the
sale extinguishsd the title of tht
= heirs.
A statute Of Ohio, adopted from tht
, statutes of Pennsylvania, authorized
! "a writ of scire facias against thu
q mortgagos, or lnortgagors, or his, her
T or their heirs, executors or admlnlstia
\ tors.
a In Bjegerstatf VS.. Loveland, 8 Ohio
o "A (ls37l the scire facias was agains
:, the administrator of the mortgage
. alone. The court say the object o
: the statute was to give a summar
q remedy to the MORTGAGE, by enabling
him in one action to recover or liaui
"a date his debt, and TO subject the lande
n security to the satisfaction of it. ~
i. is the contemporaneou constr uctio
II; that must govern, and we believe tina
construction to have Eeen that where
Ia scire facias was sued out after tn
a death of the mortgagor, it might .
n sued out, according to the words OF To
n act, against either the executor, or IL
,, administrator, or against the helr, az
cordinp 10 circumstances.
Ia "If there was q personal represents
n tive, the suit must be commence
i. against him; if not, then against til
or zeal representative.
ia Held that the sheI if g sale Invested a
L. interest of the plaintiffs, the heirs |
8, law of the mortgage
o. This decision was followed in Higl
in way VS.. Pendletcn, 10 Ohio, 1876 (l846
a The statute of Illinois giving Il
he remedy by scire facias, required ii
ID officers to whom the writ IS directe
ir' ''to make known to the mortgagor,
ph n if he be dead, to his heirs, executors
he administrators, to show cause, If al
OF they have, why judgment should not
rendered." NC.
"a In Rockwell VS.. Jones, q ILL.,,
st. (1S59) the scire facias was against =
administrator of the mortgagor; }
lot heirs not being parties. The. court,
,re ferring to the above, quoted provisi
he of the statute, say:
es. "This language is clear and explic
nd that the plaintiff may, when the mo-
gaaor is dead, at his election. ma
re- either the heirs, executors or admin
tly TRAITORS defendants, as he may choo'
ese Tho language is in distinctive, a
els we can, by no known rule of constr I.
an tion, say that it requires the he
lge to be parties, if the plaintiff sh
gor choose to proceed against the execute
or administrator, The writ was MAJ
ari testify in compliance with the statu
to and was thereto against The pro-
ian PARTIES" y ''Tne judgment
is; K i Unjust have precisely
on, same effect as if it we're against
the mortgagor himself, il he were living
In Ohickering VS.. Failes, 26 Ill.,.
go, (l86l) it was held that proceed
ice to forclose a mortgage by scire fac
lis is governed by the practice of courts
aole law, and not of courts of equity; Il
and no persons but the mortgagor, or
, in case of his death, his executor
the administrator, are required to he mi
ged parties, and that assignees in bal
: Of ruptcy and subsequent purchasers {
incumbrancers are required to Il
ort- notice of proceedings by scire fac
MIS- and to protect their own rights.
ices Public policy would seem to ia
reIe that construction OF our STATUTE WI
de- would tend to encourage LOADS U
the the security OF real estate, anu
, of promote improvements.
| e