Riley's Adm'r v. McCord's Adm'r

• Decision Date: 31 January 1857
• Citation: 24 Mo. 265
• Parties: RILEY'S ADMINISTRATOR, Respondent, v. MCCORD'S ADMINISTRATOR, Appellant.
• Court: Missouri Supreme Court

24 Mo. 265

RILEY'S ADMINISTRATOR, Respondent,

v.MCCORD'S ADMINISTRATOR, Appellant.

Supreme Court of Missouri.

January Term, 1857.

1. A judgment of foreclosure, and that the mortgaged premises be sold, etc., obtained in a proceeding under the act concerning mortgages (R. C. 1845, p. 749), may be revived in the name of the administrator of the mortgagee against the administrator of the mortgagor; and that, too, although this judgment of foreclosure was obtained by the mortgagee as trustee of a third person.

2. Although a petition for a foreclosure of a mortgage may be addressed to the judge “in chancery sitting,” and the petitioner styled “your orator,” and it be prayed that “a writ of subpœna issue;” yet if, in accordance with the prayer of the petition, a judgment or decree is rendered that the equity of redemption be foreclosed and the mortgaged premises sold, etc., the proceeding will be regarded as a statutory proceeding.

3. An illegality in the grant of letters of administration cannot be taken advantage of in a collateral proceeding.

4. After judgment of foreclosure of a mortgage, it is too late to urge against the revival of the judgment, by scire facias, that the mortgage was voluntary.

Appeal from Callaway Circuit Court.

This cause has been heretofore in this court. The decision of this court will be found reported in 21 Mo. 285. The cause having been remanded to the court below, the defendant put in an answer in which he alleged that he had not knowledge, etc., to form a belief as to the death of Riley, the mortgagee; and admitted the grant of letters of administration upon the estate of Riley to Chase, the plaintiff, but denied his right to administer upon the trust property which belonged to Riley in his capacity of trustee for Mrs. McCord. He alleged that Riley had no estate to administer upon, except this judgment of foreclosure, etc., obtained against McCord, in his own favor, as trustee of McCord's wife; that the decree of foreclosure was not obtained in a proceeding under the act concerning mortgages, but in a proceeding in chancery. Defendant also set up that the mortgages to Riley by McCord were voluntary, without consideratien, and were never delivered to Riley, and that Riley never had any knowledge of them; that the plaintiff, Chase, in taking out letters of administration upon the estate of Riley, had not complied with the administration law, in that he had not in his affidavit stated, to the best of his knowledge and belief, the names and places of residence of the heirs of the deceased, and that he died without a will.

The court struck out this answer, on motion of plaintiff. Exceptions were duly taken.

Gardenhire, for appellant.

I. The decree sought to be revived was a decree in chancery, and the act regulating judgments and decrees governs it, and not the act concerning mortgages. As it concerns realty, Riley's administrator had nothing to do with it. The heirs of the mortgagor and mortgagee were the proper parties. (R. C. 1845, p. 623, §§ 13, 14.) No sci. fa. having been issued within three years after the rendition of the decree, none could be issued afterwards. The judgment was in full force, to be enforced by execution, but the lien of the judgment was dead and past revival. The lien of the mortgages, not being merged in the judgment, remained; but this is a proceeding not to sell the land under execution upon the judgment, leaving the purchaser to risk the validity of the mortgage liens, but to revive the lien of the judgment, and give the purchaser the benefit, not of the mortgage liens, but of the judgment lien.

II. The judgment was held by Riley as trustee of Mary McCord, and, upon his death, the trust did not go to, nor can it be executed by, his administrator, but survived to be executed by a new trustee or by a sale of the estate for the specified trust upon a suitable bill in equity by the parties in interest.

III. The answer shows that the judgment was voluntary and without consideration, and it will not be enforced. (1 Story's Eq. §176.) It will not enforce a voluntary contract. ( Id. §432.)

Morrow, Jones and Hayden, for respondent, cited R. C. 1845, p. 750, §4; Watkins v. The State, 7 Mo. 334; 4 Kent, 186; Com....