The President v. Wilson

• Decision Date: 31 December 1847
• Citation: 9 Ill. 57,1847 WL 3839,4 Gilman 57
• Parties: THE PRESIDENT, DIRECTORS AND COMPANY OF THE STATE BANK OF ILLINOISv.THOMAS WILSON et al.
• Court: Illinois Supreme Court

4 Gilman 57

9 Ill. 57

1847 WL 3839 (Ill.)

THE PRESIDENT, DIRECTORS AND COMPANY OF THE STATE BANK OF ILLINOIS

v.THOMAS WILSON et al.

Supreme Court of Illinois.

December Term, 1847.

BILL IN CHANCERY, in the Schuyler circuit court, to foreclose a mortgage, etc., by the plaintiffs in error against Thomas Wilson and wife, and Hart Fellows.

The latter pleaded in bar, that the mortgagees had already foreclosed their mortgage by scire facias, and that the same was fully satisfied by a sale of the mortgaged premises to them. At the August special term, 1846, the Hon. NORMAN H. PURPLE presiding, the plea was adjudged good and the bill dismissed with costs.

W. A. MINSHALL, for the plaintiffs in error, relied on the following points and authorities for a reversal of the decree of the circuit court: Marine Ins. Co. v. Hodgson, 2 Peters' Cond. R. 518; Montgomery v. Brown, 2 Gilm. 585; Saunders v. Jennings, 2 J. J. Marsh, 513; 2 Story's Eq. Jur. 173, sec. 887; Ibid. 252, 256; James v. Morey, 2 Cowen, 320; 3 Atkins, 303, 558; 1 Smith's Ch. Pr. 227; 6 Vesey, 536, 599; Jackson v. DeLancey, 13 Johns. 535. A plea to the relief only must give the discovery asked. 1 Smith's Ch. Pr. 218; King v. Hemming, 9 Sim. 59; Beames' Eq. Pl. 33, 34; 6 Maddock's Ch. R. 61; Story's Eq. Pl. 644.

Scire facias is only authorized against the mortgagor, his heirs and administrators. Rev. Stat. 304.

A foreclosure to correct a mistake after a scire facias, is allowed. Willis v. Henderson, 4 Scam. 14.

Also, where a court of equity obtains jurisdiction, it will retain the case till the parties are put into possession under the decree. Aldrich v. Sharp, 3 Scam. 261.

R. S. BLACKWELL, for the defendant in error, relied upon the following points and authorities:

1. The proceeding by scire facias at law, to foreclose a mortgage, is a concurrent remedy with a bill in chancery. The mortgagee has an election to proceed at law by sci. fa., or in equity by bill; but, having made an election of the sci. fa., he is bound by it; and if the remedy be inadequate, or the proceedings on the sci. fa. erroneous, he must abide by the result of his election. It is an established maxim of jurisprudence, that in all cases of concurrent jurisdiction, that court which first obtains jurisdiction of the subject matter of the controversy, must determine it exclusively, and all other courts will refuse relief. Smith v. McIvers, 9 Wheaton, 532; Hawley v. Mancius, 7 Johns. Ch. R. 182; Taylor v. Porter, 1 Dana, 425; Keith v. Humphries, 1 Marsh. 13; Simpson v. Hart, 1 Johns. Ch. R. 91; Abrams v. Camp, 3 Scam. 290.

2. The proceedings at law on a sci. fa. to foreclose a mortgage are in rem, and it is a well settled principle in such proceedings, that all persons who could have asserted a right to the property, become parties to the proceedings; and all judgments founded on such proceedings, whether they relate to real or personal property, are held valid and binding, as being res judicatæ, in every other country, in respect to all matters of right, title, transfer and disposition of the property against which the judgment was rendered. 1 Kent's Com. 119, note c. and cases there cited.

3. The statute provides that the mortgagor, or, if he be dead, then his heirs, executors or administrators shall be made parties to the scire facias; and further provides, that the mortgagor, his heirs, executors, administrators or grantee, may redeem the land from the sale which takes place under this proceeding in twelve months, and that the judgment creditors of the mortgagor may redeem from said sale within fifteen months, in the same manner prescribed for the redemption of lands sold at sheriffs' sales under ordinary judgments and executions. We insist that, upon the true construction of this statute, if the mortgagor, his heirs, grantees, or judgment creditors, do not redeem within the time and in the manner pointed out in this statute, that their and each of their equities of redemption are as effectually barred and foreclosed as if they were made parties to a bill of foreclosure in chancery and neglected to redeem according to the terms of the decree. Rev. Stat. 304-5, secs. 23, 24; Biggerstaff v. Loveland, 8 Ohio, 44-9.

Opinion of the court by CATON, J.^a

The State Bank filed this bill in the Schuyler circuit court against Wilson and wife and Fellows, to foreclose a mortgage, executed by Wilson and wife on the 29th day of October, 1835, which was duly acknowledged and recorded on the same day, which, the bill avers, still remains unpaid and unsatisfied and charges Fellows as a subsequent purchaser with notice, who, the bill also avers, was in possession of the mortgaged premises, and prays a foreclosure of the mortgage and the delivery up of all deeds, etc., in possession of the defendants, relating to the mortgaged premises, and for general relief. This bill was filed on the 25th of January, 1845; on the first day of September, 1845, the bill was taken for confessed, as to all of the defendants, and on the same day, on the application of Fellows, the default was set aside and he was permitted to file a plea, which states that the complainant had previously foreclosed the same mortgage by sci. fa., obtained judgment for the amount due, which still remains unreversed, etc., issued a special execution, upon which the premises were sold on the 8th of February, 1840, and bid in by the bank for the amount of the judgment, whereby the same became satisfied.

This plea, upon a hearing, was held to be sufficient by the court, and a bar to the relief sought by the bill, which was accordingly dismissed. In determining the sufficiency of this plea, it is necessary that we should inquire into the effect of a foreclosure by scire facias under our statute, which provides, that if default be made in the payment of any sum of money secured by mortgage on lands and tenements duly executed and recorded, and if the payment be by instalments, and the last instalment shall have become due, it shall be lawful for the mortgagee, his executors or administrators, to sue out a writ of scire facias from the clerk's office of the circuit court of the county in which the said mortgaged premises may be situated or any part thereof, directed to the sheriff or other proper officer of such county, requiring him to make known to the mortgagor, or if he be dead to his heirs, executors, or administrators, to show cause if any they have, why judgment should not be rendered for such sum of money as may be due by virtue of said mortgage, and upon the appearance of the party named as defendant in said writ of scire facias, the court may proceed to judgment as in other cases; but if said scire facias be returned nihil or that the defendant be not found, an alias scire facias may be issued; and if it be returned as aforesaid, or if the...