Childs v. Eastburn

1 Blackf. 118 | Ind. | 1821

Holman, J.

Easlburn held a mortgage against Childs for the payment of a sum of money, and the same not being paid agreeably to the condition, he sued out a scire facias. The writ of sci-re facias, after setting forth the mortgage, &c., commands that if be made known to the said Childs, that he appear, &c. to show cause why the said Eastburn should not have judgment for the said debt, with lawful interest thereon. On the return of the scire facias, Childs made a motion to quash it, which was overruled by the Circuit Court. The mortgage was foreclosed, a judgment given for the money due, and the mortgaged premises ordered to be sold. These proceedings were predicated on the act of assembly, subjecting real and persona.! estate to execution, approved the 7th of January, 1818. The 7th section of that act provides, that • such a scire facias may issue to make known to the mortgagor, that he appear and show wherefore the mortgaged premises ought not to be seized and taken in execution for payment of the mortgage money, with interest, &c. ⁽¹⁾. Agreeably to this statute, and the evident nature of the case, the object of the scire facias is to obtain execution of the mortgaged premises, and not a judgment for the mortgage money. The mortgage exists in the nature of a judgment, and when the amount due thereon, as in the present case, is apparent from the face of it, nothing is wanting by the mortgagee, but execution of the mortgaged premises for the amount due, and for this purpose only, he sues out his scire facias. Nor is this position affected by the right of the mortgagor to show, on the return of the scire facias, that he is exonerated from the demand, or that the premises are not subject to execution. This scire facias seems to have lost sight of this object, and goes only for a judgment for the debt; which is certainly erroneous. It should have pursued the act of assembly, if not literally, at least substantially; and not having done so, it should have been quashed-on motion.

Nelson, for the plaintiff. Per Curiam.

The judgment is reversed, and the writ of scire facias quashed, with costs.

(1) Stat, 1817, p. 189. Vide Lasselle v. Godfroy, May term 1824, post.