Mendenhall's Ex'r. v. Ocheltree's Ex'r. — 3 Del. 292

Majority

p. 292

JAMES MENDENHALL’S Ex’r. vs. JAMES OCHELTREE’S Ex’r.

Headnote

In a sci. fa. on a mortgage against the executor of the mortgagor alone the executor cannot plead a piea that belongs exclusively to the heir or terre-tenant; as that the mortgagor in fee had only a life estate in the promises.

A sale under such a sci. fa- would not prejudice the heir or terre-tenant beyond the interest of the mortgagor.

Scire facias on a mortgage. Pleas payment, and that James Ocheltree, the mortgagor, had no interest or estate in the mortgaged I premises other than a life estate which has terminated by his death.

Mr. Wales moved to strike out this last plea.

Wales, for plaintiff.

W. H. Rogers, for defendant.

The question is, whether a plea which purports to I try the title of the mortgagor in the mortgaged premises can be I pleaded in a scire facias on the mortgage against the executor, and| not against the heirs or terre-tenants. We think not. This is a proceeding against the executor, and to which the heir is no party. Thel executor may plead any lawful plea in avoidance of the deed, as non! est factum,.payment, &c., but he cannot deny the mortgagor’s title,! which is expressed on the mortgage to be a fee. Nor is it necessary! to the protection of the heir that he should be allowed to plead thus/ The sale on a levari facias issued on any judgment now to be re-j covered, would be of no more than the mortgagor’s estate, whatever it is; discharged of the equity of redemption, and all other incum-l brances of the mortgagor. (Dig. 206.) It would be monstrous tc extend it further. It would be to sell one man’s land on the mort| gage of another without notice or remedy.

Plea struck out and judgment for plaintiff.