Evening journal., 1900-03-09
ARGUMENT FOR
A NON-SUIT
Messrs. Maxwell and Bispham
Argue on Their Motion to
Throw Case Out of Court.
COURT IN BANGS OPINION

TER SEALS HAS NOT THE RIGHT
TO SUE IN THE CASE OF SEALS
VS.. CHADWICK-OPINION TO BE
CERTIFIED IN THE SUPERIOR
COURT.
Robert II. Maxwell counsel for the
defense in the Frantz VS.. Girard Trust
Company case in Superior Court, yes
terday afternoon moved for a non-suit,
holding as his grounds that the rep
resentations made were Of promis-
sorry character; that concerning the or
der Of the United States Court il is
purely a question OF Interpretation OF
law; that it is a case of opinion in
which both plaintiff and defendant are
entitled to equal consideration, and
that IL is evident that the plaintiff did
not rely upon the representations Of
the receivers, in that he went to the
United States Court and examined the
order of the court. The afternoon was
consumed in the argument.
4 Arule for writ Of possession, returnable
j on Monday, was granted in the case OF
u the Wilmington Savings Fund Society
VS.. James II. Murray.
Chief Justice Lore and Associate
Judges Spruance, Pennewill and Boyce,
sitting as court in banc this morning
handed down an opinion, which is Of
, important interest to property owners
OF this county, in the case Of John Doe
! on the demise of Walter. e. Seals VS.
Richard Roe. casual ejector, and George
! A. Chadwick, tenant in possession.
The case is as follows Martin Seals,
being seized in fee simple OF a lot OF
, land situate in New Castle county, with
Louise Seals. his wife. in 1878, exc
t, cuted a mortgage upon said premises
to the City Building and Loan Asso-
ciation, conditioned for the payment Of
, a debt of S40O which mortgage was
) thereupon duly recorded.
Martin Seals died in 1880, seized Of
/ said premises, and inestate, leaving to
survive him his wife, and three chill
dren, to whom the said premises de-
t scended under the inestate laws OF this
s state, subject to the lien Of the said
mortgage. Letters OF administration
Z upon the estate Of the inestate were
e granted blythe registrar Of wills to viii
liam Seals.
K The mortgage debt being due and un-
] paid, the mortgagee, sued out Of the
Superior Court in the May term, 1881. a
write of scire facias upon the mortgage
against William Seals, administrator
r. and Louise Seals, the surviving mortga-
J. igor, and terre tenant. Judgment in the
sum OF S296.57 was rendered against the
administrator writ of levari facias
r was afterwards issued on the judg-
d ment under which the sheriff sold and
e conveyed the mortgaged premises 70
b the purchaser, the City Building and
- Loan Association, and in 1894, the lat
S ter conveyed all Of its rights in the
q premises TO the defendant, George A.
; Chadwick, who has ever since been In
possession of the same
k The action of ejectment was brought
I. by the plaintiff. one of the children
: and heirs at law OF the inestate of
4 Martin Seals, for the recovery OF the
a possession OF one equal undivided third
l. Of the said mortgaged premises.
T. The question presented for the con-
a sideration of the court in banc was
y whether. by the law Of this state, the
plainuf should have been made a
party defendant to the action of scire
facias upon the mortgage, in order
that his equity of redemption in the
!. mortgaged premises should be fore
y closed or barred.
After having cited a number OF au-
! thorities. in deciding the question the
y court said:
Public policy would seem to favor
g that construction of our statute which
y would tend to encourage loans upon
70 the security of real estate and thu!
lpromote improvements.
"TO require the holders of mortgage.
to trace out all subsequent devolutionl
ie Of title and bring into court all per
J. sons interested in the mortgaged prem
y ises as heirs, devisees, assignees or in
"a cumbrances. would often be extremely
L convenient If not impossible.
Our statute imposes upon the hold
ers of mortgages no such burden. Th
only necessary party defendant is tn
mortgagor, if he be living, whether h
4 continues to be the owner of the mort
T. gagged premises or not. If the mort
S, gagor be dead. his executor or admin
I'd istrator, if there be one, is the Onl
he necessary. party defendant, whethe
the mortgaged premises be owned b
heirs, devisees or assigns subsequen
20 the mortgage.
Ill "All persons acquiring title to o
y right in mortgaged premises subse
in Quent to the mortgage, take subject t
i'd it, and such title or right, is liable I
be barred and divested by a sale an
conveyance under proceedings by scir
facias, duly served upon the mortgago
# if living. or upon his executor or aC
,is ministrator if he be dead.
s. I'VE are therefore of the opinion. ths
va by the law of this state, the said plaiI
tiff, Walter e. Seals, was not a necei
sary party in said action of scire facis
in order that his equity of redemptio
No in said mortgaged premises should I
~ foreclosed or barred. and that h
- equity Of redemption in said premis;
N was barred and divested by the sal
sale and conveyance under the sal
scire facias proceedings
ut is ordered that this opinion
certified to the said Superior Court f
yer New Castle county"
me T. Bayard Heisel represented Il
on plaintiff. and William T. Lyman repr
sented the defendant.
The court was occupied this morniI
in hearing the arguments Of Messl
eld Hines and Bispham, At the conclusi'