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Heighway v. Pendleton.

1846.

In Bark. its passage. But the law of 1795 applied to mortgages made Dec. Term,

" before as well as, after its adoption; and I feel constrained to

put such a construction upon the law as will prevent it from assuming to authorize the taking away of an estate which had become vested before its adoption, by so called judicial proceedings against a third person, not the owner.

Indeed, the meaning of the law is plain and obvious. It required the Court to go against either the heir, or the personal representative of the mortgagor, according to the nature of the estate. Thus, if the land was freehold, the fundamental rule of law and justice was to be complied with, the owner (the heir,) was to have his day in Court; and by virtue of the same rule, if a chattel interest was the subject of the mortgage, the executor or administrator was to be served with process.

The Court in Biggerstaff v. Loveland say: “Generally, when a suit is authorized by statute, to be commenced against • the heirs, executors, or administrators of a deceased person, - we should conclude that the suit must be brought against one ' or the other, acccording to the nature of the particular cause

of action. If it was one in which the heirs were bound, or 4 had a peculiar interest, the suit should be brought against them; otherwise against the executor or administrator. I, however, we were to adopt this principle in construction of this statute, no difficulty would be removed.”

The reason given is, that the act makes the judgment a debt of record, if the mortgaged premises are insufficient; so that the personal representatives, as well as the heirs, are affected by the proceedings which, by the express terms of the statute, may be commenced against either. It may well be doubted whether this reasoning is consistent with the rule, that the right to a day in Court should be jealously preserved. But it is clear that the language of the Court affords no countenance to the proposition, that, in the absence of the provision referred to, the heir is deprived of his day in Court. On the contrary, the Court fully recognize his right, where the difficulty, suppased to be raised by the act of 1810, does not exist.

Heighway v. Pendleton.

It is said, however, that it was not the practice to give the IN BANK.

Dec. Term, owner his day in Court. This assertion is purely gratuitous, 1846. and, if true, it would not affect the question; for, as decided by this Court, in Lessee of Grey v. Askew, 3 Ohio Rep. 479, “ where a practice was insisted on, it is not enough that the question passed unnoticed, it must have been decided ; a con

struction must be given by the courts themselves.". The case just cited shows that it certainly was the practice, to some extent, to seize the lands of heirs without giving them their day day in Court. But this Court refused to sanction the practice.

As to the alledged practice, under the act of 1807, for the sheriff to execute a deed without the confirmation of the Court, there is nothing to support the assertion. The number of suits commenced after the passage of the act of 1807, on mortgages made before the year 1802, cannot have been numerous; and, out of the whole of them, it is very unlikely that more than half a dozen were conducted without regard to the law in force when the law was executed. It is true that, in some of the cases, as in this, the plaintiffs, according to an error common at one time, may have preferred obtaining a general judgment and proceeding, under a general execution, against all the property of the decedent, and then, of course, the deed would be executed under the general execution law. . . .

There are some additional objections to the title derived by the defendants to a portion of the property - the fractional sections which were levied upon and sold, under the judgment rendered against the administratrix, for $473.

The so called writ of sci. fa. was founded upon the deed of . 1798, which did not pass any title. But it is said, not only might the heir be deprived of his freehold, by proceedings upon a mortgage, without being allowed an opportunity of defending himself; but, also, that the absolute owner might be divested without being allowed his day in Court, even when there was no mortgage in existence. I cannot for a moment assent to this proposition. The suggestion, that the administratrix might have denied the alledged mortgage, has no force. If the owner

Heighway v. Pendleton.

1846.

In Bang. had been before the Court, and thus had an opportunity of Dec. Term,

traversing the allegation, she would have been bound by an adjudication of the Court that there was a mortgage, if such adjudication had been made.

There was no valid mortgage, and there was no valid writ of sci. fa., the writ produced being without a seal, and there is no such thing as presumption of a seal to process. Both of these are matters which the plaintiff never had an opportunity of controverting before the trial of the action. The defendants' ancestor obtained possession under the compromise deed of 1815; the possession being retained by Mrs. Mercer and her daughter up to that time, notwithstanding the sheriff's deed of 1811.

The mortgage title does not, in my opinion, form any defence to this action. The mortgage money has been fully satisfied; and, if it had not been, as the defendants are not proved to be entitled to it, they would have no defence. They are not liable to be charged as mortgagees in possession for the rents and profits, because they hold adversely. It follows that they cannot set up the defence, that they are mortgagees in possession.

The heir of the mortgagee takes no title in the mortgaged premises. This Court has decided that a simple transfer of the mortgage debt leaves no interest in the mortgagee, because the mortgage lien is a mere incident of the debt. Upon the death of the mortgagee, his executor or administrator becomes legally entitled to the debt, and, consequently, to the mortgage lien. “It would be absurd in principle and oppressive in practice for " the debt and mortgage to be separated and placed in different and independent hands.” 5 Cowen's Rep. 207.

The deed of release of all claims on the estate of John Mercer, executed in 1827, is conclusive. A deed of release is always binding at law, unless obtained by fraud or duress. If executed under a mistaken supposition that some claims have been satisfied which have not been, the remedy is in equity.

But all the evidence, in the present case, shows that no debt remains unsatisfied. According to the case made on behalf of

1846.

Heighway v. Pendleton. defendants, credit was given, on the compromise of 1815, for ín Bank.

Dec. Term, only a part of the mortgage money. This was on account of the conveyance made to Jesse Hunt of part of the property belonging to the plaintiff. She was deprived of the use and profit thereof, during the life of her husband, by that conveyance. There was, then, some consideration for the credit given on the mortgage, and this consideration cannot be restored. Its adequacy certainly cannot be inquired into in this action. Chitty on Contracts, 31; Fowler v. Shearer, 7 Mass. Rep. 19.

The argument, that the amount credited in 1815 is now due, is untenable, even if we go behind the release, for the life estate held and enjoyed by Jesse Hunt cannot be treated as of no value. The balance of the mortgage money was settled by a conveyance of property in the year 1827, and, thereupon, the deed of release of all claims was executed and delivered.

As to what has been said about Jesse Hunt's conduct in his dealings with the widow Mercer, I am unable to say whether he did agree to purchase the property at the sheriff's sale, as trustee, as sworn to by her, nor can I say whether the terms of the compromise were violated by Jesse Hunt, and the mortgage money paid twice; with these matters we have nothing to do. I should not have alluded to them had they not been made to assume considerable prominence in this case. .

In my opinion, the decision in this case has violated a great constitutional principle, and has sanctioned the errors of postjudicial proceedings at the expense of fundamental right, and exhibits the sad spectacle of a person being deprived of her estate without ever having had a day in court.

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