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

• Decision Date: 31 July 1855
• Citation: 21 Mo. 285
• Parties: RILEY'S ADMINISTRATOR, Plaintiff in Error, v. MCCORD'S ADMINISTRATOR, Defendant in Error.
• Court: Missouri Supreme Court

21 Mo. 285

RILEY'S ADMINISTRATOR, Plaintiff in Error,

v.MCCORD'S ADMINISTRATOR, Defendant in Error.

Supreme Court of Missouri.

July Term, 1855.

1. The lien of a mortgage is not merged in a judgment obtained in a proceeding under the statute to foreclose.

2. After the death of the mortgagor or mortgagee, before or after judgment of foreclosure, the proceeding may, under the statute, be continued in the name of the personal representative, without the heir.

Error to Calloway Circuit Court.

Scire facias sued out by the administrator of the mortgagee in 1854, to revive a judgment of foreclosure rendered in 1848, and to compel the administrator of the mortgagor to show cause why the mortgaged land should not be sold to satisfy the judgment.

The scire facias recited that both the mortgagor and mortgagee had died since the rendition of the judgment, and that the mortgagor had parted with all his interest in the land before his death. The writ was demurred to, and two causes of demurrer assigned, 1st, that the heirs of the mortgagor and mortgagee were not made parties, and 2d, that the lien of the judgment had expired, and could not be revived against the personal representative. The Circuit Court sustained the demurrer.

Morrow, Jones and H. C. Hayden, for plaintiff in error.

1. The personal representatives were the proper parties. (4th, 8th and 17th sections of the act concerning “Mortgages,” R. C. 1845.) 2. The demurrer cannot be sustained on the ground that the lien of the judgment had expired. The mortgage passed an interest in the land. It still remained a specific lien, and could only be discharged by a payment or release. (31 Maine Rep. 246. 3 Penn. 368. 4 Wharton, 410. 3 Marshall, 621. 3 Littell, 50, 51. 1 Alabama, (N. S.) 23. 3 A. K. Marsh. 618. 12 Mass. 379.) The only way in which the mortgage could be enforced was by a judgment of foreclosure, and it is a solecism in law to say that the very remedy provided for the enforcement of a right operates to decrease, divest or extinguish it. Even if this had been a proceeding to revive a general judgment lien, the time had not expired. (R. C. 1845, tit. Judgments and Decrees, § 7.)

Hardin and Gardenhire, for defendant in error.

1. The administrators were not the proper parties. (R. C. 1845, tit. Judgments and Decrees, § 13, 14; tit. Mortgages, § 10, 11, 13. Practice act of 1849, art. 3, § 1, 7.) If the mortgagor was divested of all interest in the land in his lifetime, those who acquired his interest should have been made parties. 2. The scire facias was sued out after the lien of the judgment had expired. By the statute, the lien continues three years. A scire facias may be sued out within ten years, and not afterwards. But the lien must be kept alive, and if it is allowed to expire, no scire facias can afterwards be sued out, or if it can, can only have the effect to create a new lien and not to continue the old one. 3. The lien of the mortgage was merged in the judgment of foreclosure. (1 Barb. Sup. Ct. Rep. 379, 388.)

SCOTT, Judge, delivered the opinion of the court.

1. The question in this case is, whether the lien of a mortgage is merged in a judgment obtained in a proceeding under the statute to foreclose the mortgage. If the lien of the mortgage is extinguished by the judgment, the mortgagee is in a dangerous situation, such a one as would induce many mortgagees to forego the remedy provided by the statute; for the mortgage lien being extinguished by the lien of the judgment, obtained in the suit for a foreclosure, and the lien of the judgment taking effect from its rendition, if judgments should have been previously rendered against the mortgagor in favor of others, though subsequent in date to the mortgage, those subsequent judgment creditors would obtain a preference over a prior mortgage, though duly recorded. So proceedings for a foreclosure, under the statute, may be begun where any part of the mortgaged premises are situated. Mortgaged lands may be in several counties. The lien of a judgment is only operative in the county in which it is rendered, so that, in such cases, the mortgage lien will be destroyed. It is the just expectation of the creditor that, when he takes a mortgage, he has a security which lasts until the mortgage debt is paid....