Ayres v. Heirs & Rep. of Shannon

Edwards, Judge, delivered the opinion of the court. This was a petition filed against the heirs and representatives of George Shannon, deceased, to foreclose a mortgage of real estate lying in the county of Saint Charles. The petition sets forth the debt which the mortgage was given to secure, and sets forth the mortgage at full length, and prays that judgment may be rendered against the estate for the debt, and that the equity oí redemption of the fnortgaged premises may be foreclosed, and the mortgaged property sold to satisfy the amount due. A general demurrer was filed by'the defendant to this pétition, and was sustained by the court; and to reverse this decision, the cause is brought' here by writ of error. The circuit court sustained the demurrer, on the ground that, by the death of the mortgagor, the right to foreclose the mortgage in the circuit court was taken from the mortgagee, and that, by the lav/ of administration, exclusive jurisdiction of this subject was given to the county court. This decision of the circuit court is the only point in the cáse that arises for the determination of this com t. . By the first section of the act concerning mortgages, (409, Rev. Code of 1835,) it is provided that “all mort [284] gagees of real estate, and mortgagees of peí sonal estate, where the debt secured amounts to fifty dollars or more, may file a petition in the office of the circuit court against the mortgagor, and the actual tenants or occu-P‘ers suc^ rea^ estate, if any, setting forth the substance °f the mortgage deed, and praying that judgment may be rendered for the debt, and that the equity of redemption shall be foreclosed, and the mortgaged property may. S°M to satisfy the amount due.” Section 8, provides that 44 i^ upon the trial, it be found that any part of the mortgage money is unpaid, and that the petitioner is entitled to recover the same, the court shall render judgment for the debt, interest and costs, and shall make an order that the mortgaged property be sold, (descrioing it as in the mortgage,) to satisfy the amount found due, with interest thereon until paid.” There is no question, then,about the remedy during the life of the mortgagor; and the only question is, what is the remedy after his death? The statute concerning mortgages does not provide that the mortgagee shall proceed against the legal representatives of the mortgagor after his death, as Ire would have been authorized to proceed during his life; yet the general principle of law is, that wherever a contract is entered into, and one of the contracting parties dies, the other contracting party shall not lose his remedy on such contract, but shall have the right to pursue his remedy against the legal representatives of the deceased contracting party. This principle applies to the case before us. The defendant contends, however, that the county court has exclusive control over this matter. The sixth section of the third article of the law concerning administration, provides that “ if any person die, having mortgaged any real estate, or pledged any personal property, or owning any equity of redemption, and shall not have devised the same, or provided for the redemption of the same, by will, the county court, upon the application of any person interested, may order the executor or administrator to redeem such estate out of the personal assets, if it would be beneficial to the estate and not injurious to the creditors.” The seventh section provides, that 44-if such redemption would injure the estate or creditors, or there would not be assets enough to redeem such estate, after paying the debts, the court shall order all the right, title and interest of the estate to such property to be sold at public sale.” These sections authorize the county court to do precisely what the mortgagor might have [285] done during his lifetime, and nothing more; that is, 1st, to redeem the property mortgaged; and, if that is not advisable, 2d, to sell the equity of redemption. But these rights give the county court no more power to interfere with the remedy of the mortgagee than the same rights gave to the mortgagor. The plaintiff, then, was entitled to his remedy against the legal representatives of Shannon, and the circuit court erred in sustaining the defendant’s demurrer to the plaintiff’s petition. The judgment of the circuit court ought therefore to be reversed, and the other judges concurring, it is reversed and remanded.