5 Mo. 282 | Mo. | 1838
delivered the opinion of the court.
This was a petition filed against the heirs and representatives of George Shannon, deceased, to foreclose a mortgage of real estate lying in the county of Saint Charles. The petition sets forth the debt which the mortgage was given to secure, and sets forth the mortgage at full length, and prays that judgment may be rendered against the estate for the debt, and that the equity oí redemption of the fnortgaged premises may be foreclosed, and the mortgaged property sold to satisfy the amount due. A general demurrer was filed by'the defendant to this pétition, and was sustained by the court; and to reverse this decision, the cause is brought' here by writ of error.
The circuit court sustained the demurrer, on the ground that, by the death of the mortgagor, the right to foreclose the mortgage in the circuit court was taken from the mortgagee, and that, by the lav/ of administration, exclusive jurisdiction of this subject was given to the county court. This decision of the circuit court is the only point in the cáse that arises for the determination of this com t. .
By the first section of the act concerning mortgages, (409, Rev. Code of 1835,) it is provided that “all mort
The defendant contends, however, that the county court has exclusive control over this matter. The sixth section of the third article of the law concerning administration, provides that “ if any person die, having mortgaged any real estate, or pledged any personal property, or owning any equity of redemption, and shall not have devised the same, or provided for the redemption of the same, by will, the county court, upon the application of any person interested, may order the executor or administrator to redeem such estate out of the personal assets, if it would be beneficial to the estate and not injurious to the creditors.” The seventh section provides, that 44-if such redemption would injure the estate or creditors, or there would not be assets enough to redeem such estate, after paying the debts, the court shall order all the right, title and interest of the estate to such property to be sold at public sale.” These sections authorize the county court to do precisely what the mortgagor might have