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

by deed to the purchaser, &c. j
Section SO provides that the person to II
whom any lands shall be sold as afore. n
said and his heirs and assigns, shall
hold the same discharged from all j
equity of redemption and all other in $
cumbrances made and suffered by the I
mortgagor, his heirs or assigns.
1t is Insisted on behalf Of the plain !
tiff, that in determining who are neces- :
sary parties in scire facias proceedings
under this statute, we should be guided
by the practice of Courts of Equity in
foreclosure suits, as the intention to
change a pre- existing law shall not be
presumed unless the statute is clear
and explicit. -,e.
We are unable to say whether mort
cages we're foreclosed by suits in equity
In this colony prior to the said Act OF
l726-36, but it is certain that courts
Of equity were held here long before
that time, see preamble to chap. %
(enacted in 1871 Laws of Delaware,
So. Shortly after the adoption OF said
act of T26-36, and during the admins
tration of Lieutenant. Governor Gordon,
very full equity powers were given TO
the Court OF Common Pleas, by sections
81 to %, chap ID, Laws OF Delaware,
PIP. 130sl-2.
The act of 1866 did not take away
or alter the chancery method OF fore
closure, FOX VS.. Wharton, Del. Oh.
20O) but provided new and different |
remedy at law, to which the practice |
in Courts of Chancery is not applicable. |
The statute provided convenient,
simple and speedy remedy, which should
be administered in accordance with the
terms and intention of the statute, and
without regard TO the more cumber-
some methods of courts OF equity IN
foreclosure suits.
The following are important features
of the statute, both in its original and
ccdified form:
Il |. "Assigns" of the mortgage are
out the writ of scire facias, but
assigns Of the morteagor are not
mentioned among those to whom the
writ lie to be made known.
This appears to clearly indicate that
"assigns'' of the mortgagor. subse-
auent TO the mortgage, need. not b.
made parties defendant, or to be noti-
, fed of the writ.
3 In the designation of those to
, whom the writ IS to be made known,
, the distinctive conjunction "or" IS
used.
! From this we infer that the writ
5 must be made known to the appropriate
: PARTIES, viz, to the mortgagor If living,
: or if dead, to his executor or admins
TRAITOR, or il there be no executor or
q administrator, to his heirs, If they
r hold the equity of redemption.
i 3. That the purchaser under the
9 levari faoias shall hold the mortgaged
O premises discharged Of all equity of
d redemption.
The equity of redemption mentioned
i il not merely that of the persons made
# defendants in the scire faoias, or oil
N those to whom it has been made known,
a but all equity of redemption of all per-
If SONG claiming under the mortgagor sub
n sequent TO the mortgage.
n 1t is we'll settled in this State that
10 mortgage is merely security for the
payment of debt or the performance
,r Of some other condition. The estate o.
10 the mortgagor in the land, remains II
m him, and passes to his assignee, deviset
is or heirs, subject to the lien of thu
mr. mortgage. What is called the equil,
nt of redemption is here the title to thu
g. mortgaeed land, with the right to re
,Is deem it from the incumbrance OF tn
to mortgage. -
4. The mortgage takes by the mortgag
no title to the land, but merely liel
at upon it, which upon his dying in
nv testate, passes, to his heirs at law, blu
IA. to his executor or administrator.
Il. A mortgage no more divests the It'll
he Of the moi tgagor in the mortgage
he land than does general iudemsn
or divest the title of the defendant j.
,r- land bound by the lien OF such judg
IT. ment.
or It is the familiar practice to sell land
,rs of decedent upon general iudgmen
X recovered against his executor or &C
10. ministrator, on report of referees {
.ge verdict of a jury, without making hi
m heirs parties. 1t was decided in Richard
ma sons Adm. vs.. Pei teron, Harr. 36t
j. that lands bound by a general judE
Ike ment against decedent, are bound
rs. the hands of the heir or deyisee by
or Judgment on a scire facias against tt
nd executor or administrator, and that
he, is not necessary to make the hel
HE devisee or terre tenant party in sue
To scire facias to authorize the sale OF II
for land in the hands of the devisee
-" heirs.
To the same effect is Robinson
for Adm. vs.A Millby's Adm. 2 Hous
1 ut 1851. 1893.
TO- The question now before US is n
os whether the heir of the mortgagor we
~" proper parties to the scire facias on Il
on' mortgage, but whether they we're niece
t, sary parties in order to foreclose al
ina bal their equity of redemption.
,a We have been able to find in cur I
i oia ports but two cases bearing direct
1;s upon this question. The first of the
rs us is Mendenhall's EStr. VS.. Ocholtret
a 'hna Extr. 3 Harr 292 (1S40), which was
'i To-. action by scireN facias on mortsa
= against the executor of the mortgae
;tb alone.
.'n The court say 1.-THE sale on levi
,so "a fac,as issued on any Judgment now
Iaoo be recovered, would be Of no more th
u .,'s, the mortgagor's estate, whatever it
' the discharged of the equity of redemptit
, 10 and all other membranes OF
an mortgagor.
,a ap, We have in this case, 60 years al
, nns the distinct recognition of the pract
;roS of making the executor or admin
i i,a' traitor of a deceased mortgagor the a
~. mart defendant in the scire facias; a
'ne a declaration, in effect, that sale
s,;d such case would DO of the whole of
'"'o estate of the deceased in the mortgal
nm. pi emises, discharged of the equity
a Inv redemption.
new While other parties than the me
ions gagor, or his executors or admir-
tbe traitors, such as heirs or assign
nro- subsequent to the mortgage, "
eirs. sometimes made additional parties
ipns' PENDANT, wa believe it to have been
day general and approved construction