Menard v. Marks
2 Ill. 25
Ill.
1832
Check Treatment
Lockwood, Justice,

delivered the opinion of the Court:

This is a scire facias issued against the defendant, as administrator, to obtain a sale of mortgaged premises, pursuant to the statute, Jan. 17th, 1825, entitled “ An act concerning Judgments and Executions.” The mortgage was executed to the plaintiff by the defendant’s intestate. Upon the return of the scire facias, the defendant pleaded in abatement that the scire facias was issued within one year after the death of the intestate. To this plea the plaintiff demurred, and the defendant joined in demurrer. On the hearing of the cause in the Circuit Court, the demurrer was overruled, and the plea sustained, and thereupon judgment was given that the scire facias be abated and quashed. To reverse this judgment, a writ of error has been brought to this Court.

The only question presented by the pleadings, is, whether the 97th(1) section of the act passed 23d January, 1829, “relative to Wills and Testaments, Executors and Administrators, and the settlement of Estates,” forbids the suing out of a scire facias to foreclose a mortgage, until after the expiration of one year from the taking out of letters of administration. By the 18th section of the act “concerning Judgments and Executions” passed 17th January, 1825, it is provided in substance, that if default be made in the payment of any sum of money, secured by mortgage on lands and tenements duly executed and recorded, it shall be lawful for the mortgagee to sue out a writ of scire facias from the clerk’s office of the Circuit Court of the county in which said mortgaged premises may be situated, directed, &c., requiring the sheriff to make known to the mortgagor, or, if he be dead, to his heirs, executors, or administrators, to show cause, if any they have, why judgment should not be rendered for such sum of money as may be due by virtue of said mortgage; and upon appearance, the Court is authorized to give judgment; but if the scire facias be returned nihil, an alias scire facias may be issued; and if the alias be returned nihil, or if the defendant appear and plead, or make default, the Court may proceed to give judgment with costs: “ And also that the mortgaged premises be sold to satisfy such judgment, and may award or direct a special writ of fieri facias(2) for that purpose. Provided, however, that the judgment aforesaid shall create no lien on any other lands or tenements than the mortgaged premises, nor shall any other real or personal property of the mortgagor be liable to satisfy the same.”

The scire facias authorized by the above section of the judgment and execution law, is not an action in the ordinary acceptation of that term; but is a proceeding in rem. The judgment does not bind the administrator, nor does it affect in the least degree that portion of the intestate’s estate that is committed to his charge. If a mortgagee were to be delayed until one year after letters of administration were taken out, it would often happen that years would intervene before he could enforce his lien. No such consequences could have been intended by the legislature.

Administration, except in cases of insolvency, only extends to the(1) personal estate; and the object in forbidding the bringing of an action against an administrator for one year after the taking out of letters of administration, was to enable the administrator to ascertain whether the estate of the intestate were insolvent, in which event the debts would be classed, and paid pro rata. The reason for giving this time to ascertain the situation of the estate, does not apply to a mortgage creditor, for he has a specific lien on the mortgaged premises, which is not affected by the solvency or insolvency of the intestate’s estate. We are therefore of opinion that the demurrer to the defendant’s plea, ought to have been sustained.

It was contended in the argument of this case, that the scire facias does not set out the mortgage in full. This objection, however, cannot be taken on a plea in abatement.(2)

The judgment of the Court below is reversed with costs, and the cause remanded for further proceedings.

Judgment reversed.

Notes

Gale’s Stat. 711; R. L. 643.

Gale’s Stat. 393; R. L. 376.

But see Act of March 1,1833, Gale’s Stat. 723; R. L. 659.

See Marshall v. Maury, Post.