Lasselle v. Godfroy

1 Blackf. 297 | Ind. | 1824

Holman, J.

Scire facias to foreclose a mortgage, by Godfroy against Lasselle. Lasselle appeared and pleaded payment of the mortgage money, upon which issue was joined. That issue was tried by a jury, who found for the plaintiff and assessed his damages at 761 dollars and 36 cents. A motion in arrest of judgment was made, which was correctly overruled; no defects appearing in the scire facias or return, which were not cured, hy the defendant’s appearance and the verdict. The Court gave judgment that the plaintiff recover, of the defendant the amount of the verdict, &c., and that the said sum he levied on the mortgaged premises.

This judgment is wrong. The scire facias is in the nature of a hill in chancery to foreclose a mortgage, which never looks beyond the mortgaged premises. But a judgment like this, embraces all the property of the defendant and jeopardizes his person, contrary to the evident intention of the contract. Therefore nothing hut the property mortgaged can be affected by these proceedings. The judgment should have been, that the-mortgaged premises be taken in execution to satisfy the plaintiff the amount of his damages, so assessed by the jury, together with his costs. Another difficulty is here presented. Real and personal property are both included in this mortgage; and the act of assembly, hy which those proceedings are authorized, extends to lands, tenements, and hereditaments only. The judgment should have been that the lands, tenements, and hereditaments, set forth in the said mortgage, be taken, &c. ⁽¹⁾. The objection, that no declaration has been filed, does not present itself, in this case, in a very imposing form; inasmuch as the defendant has pleaded to the scire facias, and has had the merits of his defence as fully heard as if a declaration had been filed. We have looked into the books on this subject, and find the filing of a declaration, in scire facias, a mere matter of practice, suited to the mode of proceeding in the British Courts, and existing more in form than substance. The mode of proceeding regulated by our acts of assembly does not even contemplate a continuance of this practice. We therefore feel warranted in determining that a declaration is unnecessary, where the whole case is made out in the scire facias ⁽²⁾.

Tabhs and Judah, for the plaintiff. Dewey, for the defendant. Per Curiam.

The judgment is reversed, with costs. Cause remanded for proceedings to judgment on the verdict, &c.

(1) Stat. 1817, p. 189. — Childs v. Eastburn, ante, p. 118. — Vide Stat. 1823, p. 194.

(2) Vide Clearwater v. Rose, ante, p. 137.