Riley's Administrator v. McCord's Administrator, 24 Mo. 265

Riley's Administrator v. McCord's Administrator

24 Mo. 265 | Mo. | 1857

Scott, Judge,

delivered tbe opinion of the court.

We see no difference between this case, as now presented, I and the case as it stood in 21 vol. Mo. Rep. 285. It was a l question in our courts at one time whether the proceeding under the statute concerning mortgages was one in equity, or one i at common law subject to the provisions of the statute. It was early settled that a proceeding to foreclose the equity of redemption of a mortgage under the statute was a proceeding at law, and was not governed by the rules of proceedings inequity. (Thayer v. Campbell et al. 9 Mo. 277.) It has also been the opinion that, notwithstanding the mode prescribed by the statute, a party might forego the statutory remedy, and pursue his rights in a court of chancery by a bill in equity. When a proceeding to foreclose a mortgage has been had, in order to determine whether it was under the statute or according to the course in chancery we must have recourse to the substance of the thing, and not to the rhetorical flourishes with which it may be accompanied. An examintion of the petition will show that, though the formal parts of it are expressed in language peculiar to bills in equity, yet, in substance, it corresponds with the statute, and pursues the mode therein prescribed. But that which we deem conclusive in relation to the matter is the judgment which was rendered in the cause. That judgment is in strict conformity to the statute, and is such a one as could only have been rendered in a petition under it. Had the proceedings been in chancery, there is a part of the judgment which it was not competent for such a court to give. The judgment, in default of the mortgaged premises satisfying the mortgage debt, awards a general execution against the lands and goods of the debtor. A court of equity has no authority to enter such a decree on a bill to foreclose a mortgage. If the mortgaged property will not satisfy the debt for which it was pledged, the remedy of the party is an action at law for the remainder of it. This is clear law, and we think decisive as to the question whether the proceeding to foreclose the mort*269gage was under tbe statute or in equity. (4 Kent, 192-3-4-5.) Tbe proceeding to foreclose tbe mortgage being a statutory one, tbe objection that tbe recovery of tbe administrator would not be assets is answered. It is enough that tbe statute requires tbe administrator to be tbe party. Besides, this being a legal proceeding, tbe legal right of tbe intestate passes to bis admin-/ istrator, who may assert it in tbe same manner that tbe intes-f tate would have done. It is not for tbe debtor to object, in a\ proceeding at law for tbe recovery of a debt by tbe trustee or his representative, that tbe debt will not be assets in bis bands. That is tbe concern of tbe cestui que trust.

Any illegality in tbe grant of letters of administration can not be taken advantage of in a collateral proceeding. They must be regarded as valid until they are regularly revoked. Moreover, tbe legal estate in tbe trust property was sufficient to warrant a grant of tbe letters of administration.

As to tbe objection that tbe mortgage debt waé a voluntary one, it may be answered with tbe remark, that, on a scire fa-cias to revive a judgment, nothing can be pleaded that might have been in the original action. After a judgment, it is too late to impeach the consideration on which it is founded.

Judge Ryland concurring,

the judgment is affirmed;

Judge Leonard not sitting.