Heighway v. Pendleton. Dec. Term, 1846. directed, concerning other lands and hereditaments to be IN BANK. 'sold." The "manner and form" of the conveyance therein above directed, was by a deed duly executed and acknowledged by the sheriff in court. A deed not so acknowledged is void. When the law requires a confirmation by the court of a sheriff's sale, a sheriff's deed, without such confirmation, is void. There was the same necessity for examining the fairness and regularity of a levy upon and sale of mortgaged lands as of other lands, especially if the law authorized the summary seizure and sale without notice to the owner. A conveyance is just as necessary where the mortgagee is the purchaser, as in other cases. There is the same necessity for an examination of the proceedings on the acknowledgment of the deed in open court. The words of the law do not except this case, but require a conveyance to the buyer in all cases. The general execution law of 1805, providing for sheriff's conveyances of lands of defendants, levied upon and sold under that law, does not apply to a levy and sale under the scire facias act of 1795, for the reasons stated in the eighth proposition. The levy and sale were to be made under the scire facias act of 1795, and the Court were to examine such levy and sale, and allow or disallow the deed. 11. Deed-Want of Attestation of Signature. It is necessary for the attesting witnesses to subscribe an attestation of the facts constituting a due execution of the deed. An adoption of the testimonium clause, by a simple subscription of the witnesses' names, is sufficient; but a certificate that the deed was sealed only, or signed only, can only prove the fact certified. The signature does not prove itself. If evidence is admissible, in such case, to prove the signing or sealing, it may be presumed in a proper case, as where possession has been held under the deed, and the attesting witnesses are dead, or cannot be produced. IN BANK. Dec. Term, 1846 Heighway v. Pendleton. 12. Deed Deed-Acknowledgment and Attestation of, in the year 1798. A deed, dated 10th February, 1798, attested by one witness, not acknowledged, did not pass any title. An affidavit, made by the attesting witness, before a justice of the peace, in the year 1802, that he was present and heard such deed acknowledged, is of no validity. Under the territorial law of June 18, 1795, a deed not acknowledged or proved, as thereby required, did not in any way affect the title "in law or equity." The legal title never passed in this State, by a deed not executed according to the provisions of the law in force at the date of its execution. 13. Jurisdiction of Courts over the subject matter.—The rights of persons, not parties, to judicial proceedings, cannot be destroyed when the jurisdictional facts do not exist, especially if the plaintiff in the action be the purchaser at the sale. Therefore, when a judgment has been obtained by default, in a suit against an administrator, and is produced in evidence against the owner of freehold land, as a judgment on a mortgage, under an act authorizing summary and ex parte proceedings on mortgages, in such case, if no mortgage ever existed, such judgment is void. If there be no record of the proceedings, but the papers in the case are produced in evidence, and the so called mortgage appears on its face to be insufficient to pass the legal title, the want of jurisdiction is shown, and the judgment is void. So, if the papers show that there was no legal title in the mortgagor, the judgment is void, as the proceedings, by writ of scire facias, could not be resorted to when the mortgage did not pass a legal estate. 14. Validity of Writ. When a judgment, by default, against an administratrix is produced in evidence against the heir, as a judgment on a writ of scire facias authorized by statute, it is necessary to prove that there was a writ of scire facias. If the writ produced is without a seal, the judgment is void as against one not a party to the proceedings. Heighway v. Pendleton. Dec. Term, 15. Mortgage-When it may be set up as a Defence.- IN BANK. In an action of ejectment, the defendant cannot set up a mortgage held by a third person. A mortgage is at law, as well as in equity, a security for a debt. He who is legally entitled to the debt, is legally entitled to the mortgage lien or pledge. A conveyance in fee simple, by one claiming to be the owner, will not operate as an assignment of a mortgage debt. The purchaser does not intend to take a mere debt, and the grantor does not intend to transfer any thing but real estate. An assignment of part of a debt, secured by a negotiable instrument or by a mortgage, does not vest in the assignee a legal right. A fortiori, a conveyance by a mortgagee of a part of the estate in fee simple, does not invest the grantee with a legal right to an undefined portion of the mortgage debt. Such grantee holds adversely, and could not be made liable to account for the rents and profits, as a mortgagee in possession. It follows that he cannot set up the defence that he is a mortgagee in possession. 16. Mortgage Effect of payment of the Debt, or credit on part of it.-Payment or satisfaction of the debt destroys the mortgage. An agreement to give credit on a mortgage, founded on a sufficient legal consideration, reduces the mortgage lien pro tanto. The fact that the consideration received was of less value than supposed, will not prevent this, especially if the consideration cannot be restored, and more especially, if possible, where the consideration received exceeds in value the amount credited. See Fowler v. Shearer, 7 Mass. Rep. 19. 17. Deed of Release of Claims. A release, under seal of the heirs, representatives and estate of John Mercer, "from any further liability for or on account of any existing claims, debts, ' demands and judgments," is conclusive evidence, at law, of the nonexistence of claims prior to the date of the deed. Such release is binding at law, unless obtained by fraud or duress. 1846. Heighway v. Pendleton. IN BANK. If given under a mistaken supposition that some claims had been satisfied, the remedy is in equity. Dec. Term, 1846. There is no remedy, even in equity, if a consideration has been received for the claims sought to be revived equal in value to those claims, especially if such consideration cannot be returned. 18. Estoppel By Decree. By Decree. A former judgment or decree is no estoppel, unless it appears that it could not have passed without deciding the matter set up afterwards. And a verdict cannot be urged as an estoppel to the litigation of a fact, which was not absolutely necessary to the finding of the verdict in the previous suit. But it may be shown, by parol evidence, that the matter was tried and determined, where the pleadings and judgment are in general terms; for example, where the declaration is on the common counts. The dismissal of a bill without any reasons being assigned for such dismissal, does not operate as an estoppel, unless it is manifest that the Court must inevitably have decided the facts necessary to sustain the claim or defence afterwards set up. If the dismissal may have been for want of sufficient parties, or for a variance between the allegations and proof, or for any other reason not affecting the matter afterwards set up, there is no estoppel. Because, to constitute an estoppel, there must be a precise, certain, direct and absolute adjudication of the very matter afterwards brought in controversy. In the absence of enactments, a decree against a married woman, depriving her of her lands, would bind her. So, if a decree be pronounced in her favor, founded upon statements in a bill filed by her husband, perhaps she may be bound thereby. But mere statement in a bill filed by the husband, in the name of his wife, upon which no relief is had by her, do not bind her by way of estoppel; but the rule applies, that a feme covert is not bound by matters of estoppel during coverture. Such statements would only be prima facie evidence against the husband himself. Heighway v. Pendleton. Dec. Term, Even an actual recovery of the lands of the wife during cov- IN BANK. erture will not, in this State, deprive her, after the death of her husband, of any right which she had to such lands. A fortiori, the mere dismissal of a bill in chancery, filed during coverture, will not estop the wife from claiming her lands after the death of her husband. A conveyance was made by the husband of lands belonging to his wife; she joined in the conveyance, but was not separately examined. Afterwards a bill in chancery was filed by the husband, in the names of himself and wife, charging, amongst other things, fraud in the procurement of the deed, and praying to be relieved therefrom, and then charging various matters relating to the state of the title before such conveyance was executed. The bill was dismissed without any reasons being given, and the defendant was decreed to pay the costs. It is obvious that the charges relating to the state of the title, before the conveyance, could not have been gone into by the Court, as the plaintiffs were not relieved from that conveyance. The conveyance being sustained against the charges of fraud and mistake, it bound the plaintiffs, and the Court was compelled to dismiss the bill without examining how the case would have stood upon the further charges, if the conveyance had been set aside. 19. Decree of Foreclosure- What amounts to.- When a bill is filed by a husband, in the name of his wife, the owner of mortgaged property, not for redemption, but to have the title as mortgagor established, against claims set up by the mortgagee, as absolute owner, under conveyances, one of which was alledged to have been executed by mistake, and the other to have been taken as trustee, the dismissal of the bill is not a decree foreclosing the wife's equity of redemption. The decree merely decides that the complaint presented by the bill has not been established. There is no decree of foreclosure by dismissal, even of a bill for redemption, unless a time has been fixed for the redemption 1846. |