The Wilmington daily Republican. (Wilmington, Del.) 1890-1902, 1900-03-09
SEALS VS..
CHADWICK.

| NHleI justice Lore ana Associate
Judges Spruance, Pennewill and
Joyce, sitting in the Court in Bane
this morning, handed down an
opinion in the case of John Doe on
the demise of Walter e. Seals VS..
Richard Roe, casual ejector and
George A. Chadwick, tenant in pos
session, which is of great import
ance TO city property owners. The
case is as follows:
| Martin Seals, being seized in fee
simple OF lot of land situate in
New Castle county, with Louise
Seals. his wife, in 1878, executed
mortgage upon said premises to the
City Building and Loan Associa-
ton, conditioned for the payment
OF debt of $400, which mortgage
was thereupon duly recorded. The
said Martin Seals died in 1880,
seized of the said premises +,
and intestate, leaving to survive
him, his said wife, and three chill
dren, his only heirs atl law. TO whom
the said premises descended under
the intestate laws ofthis state, sub.
]ect to the lieu OF the said mortgage.
Letters OF administration upon the
estate of the said intestate were
duly granted by the Register of
Wills to William Seals. The said
mortgage being due and unpaid,
the said mortgagee sued out OF the
Superior Court to the May term,
1881, for writ of scire facias upon
the mortgage against William Seals,
administrator, and Louis Seals,
surviving mortgagor and terre ten
ant. Judgment was rendered at
the May term, 1881, for the sum of
$296.57 against the administrator.
A writ of levaria facias was alter
wards issued on the Judgment un-
der which the sheriff sold and con-
veyed the mortgaged premises to
the purchaser, the Building and
Loan Association, and in 1894 the
association conveyed all it's rights
to the defendant, George A. Chad
wick, who has ever since been in
possession o. the same.
The action of the eiectment was
brought by the plaintiff, one of the
three children and heirs at law of
Martin Seals, for the recovery of the
possession, one equal undivided
part of the mortgaged premises.
The question presented for the con-
sideration OF the court in banc was
whether by the law of this state,
the plaintiff should have been made
a party defendant to the action of
scire facias upon the mortgage, in
order that his equity of redemption
should be torclosed or barred.
In deciding the question Judge
Spruance said:
''Public policy would seem to fa-
vor that construction of our stat
utes which would tend to encourage
loans upon the security of real es-
tate and thus promote improve.
ments.
"To require the holders of mort
cages to trace out all subsequent
derolutions Of title and bring into
court all persons interested in the
mortgaged premises as heirs de-
visees, or assIgnees, membranes
would often be extremely inconyen-
lent If not impossible. Our stat.
ute imposes upon the holders of
mortgages too no such burden.
The only necessary party defend
ant is the mortgagor, it he be liv-
ing. whether he continues to be the
owner of the mortgaged premises
'r not'S II the mortgagor be dead,
mis- executor or administrator, if
here be one, is the only necessary
party defendant, whether the mort
ragged premises be owned by heirs,
ievisees or-assisrers, subsequent
o the mortgage.
GAN persons acquiring title to or
light in mortgaged premises subse-
luent to the mortgage take, subject
0 it, and such title or right, is liza
lie to be barred and diyested by
ale and conveyance under pro.
eedings by scire facias duly serv-
d upon the mortgagor, if living,
r upon his executor or administra.
or if he be dead. We are there
9re, of the opinion that by the law
+ this State, the plaintiff was not
ecessary party in the action in
rider that his equity of redemption
! SAID mortgaged premises should
c foreclosed or barred and that
is equity of redemption in the
remises was barred and divested vi
y the sale and conveyance under
lie scire facias proceeding.
''1t is ordered that this opinion I
e certified to the Superior Court :
r New Castle county" c
T. Bayard Heisel presented '
lie plaintiff and William r. Lyman
lie defendant !