Administrators of Royce v. Strong

The opinion of the court was delivered by Redfield, J. It is evident from the declaration that the plaintiff is not entitled to an alias execution. So far as the declaration is concerned, it would seem that the execution was levied upon the entire interest of the mortgagor; if so, the levy is correct and sufficient to pass the title. It is, indeed, urged in argument and copies of the deeds are offered to be read to this court, showing that the mortgages extended over a greater extent of land than that included in the officer’s return, and that the officer set off part of the premises, described by metes and bounds, sufficient to satisfy the mortgage and execution. This would be clearly informal and void. The mortgagee could not be required to restrict his claim to a portion of his security to accommodate either the mortgagor or a levying creditor. It has been settled in this state, by more than one decision of [249] this court, that the levy of an execution upon a part of the equity of redemption of the mortgagor, must be upon an aliquot proportion of the entire interest, and not.upon a portion of the premises described by metes and bounds. But, in the present state of the pleadings, the court cannot know that the latter was the course adopted in the present case. There is no such allegation in the- plaintiffs’ declaration. And it is believed that scire facias is not the appropriate remedy in such case. The statute of 1837 was passed with the view of affording adequate remedy in such cases. The application by that statute is required to be made to this court in the first instance. That remedy is ample and should be-pursued. It is not necessary to. consider the vexed question whether, without the statute, the plaintiffs were remediless. When a clear and ample remedy is given by statute, it should be considered as superseding all doubtful remedies at common law. Judgment affirmed. Royce, J. being one of the administrators of the intestate, did not sit.