Woodbury v. Manlove

Treat, C. J. In March, 1846, Woodbury mortgaged certain real estate, situate in Schuyler and McDonough counties, to D. and M. Manlove, to secure the payment of three promissory notes to become due in April, 1847. In October, 1851, the Manloves sued out of the Schuyler circuit court a scire facias to foreclose the mortgage. The defendant pleaded seven pleas : First, non est factum; second, nul tiel record; third, payment ; fourth, payment of two of the notes, and failure of consideration as to the other, averring that the note was given for part of the purchase-money of the mortgaged premises, which were conveyed with a covenant of seizin by plaintiffs to defendant; and that plaintiffs were not seized of two of the tracts worth the amount of the note; fifth, that the notes and mortgage were made for the purchase-money of the mortgaged premises, which were conveyed by plaintiffs to defendant with a covenant against incumbrances ; that the same were incumbered by a judgment against one of the plaintiffs, under which part of the land was sold, and a deed executed by the sheriff to the purchaser; that the value of the land sold exceeded the amount due on the mortgage, and therefore the consideration had wholly failed; sixth, that the mortgaged premises were conveyed by plaintiffs to defendant with a covenant of seizin, and the notes and mortgage were made for the purchase-money ; that plaintiffs were not seized, and the premises were worth $2,500, which amount defendant offered to set off; seventh, that the mortgaged premises were conveyed by plaintiffs to defendant with a covenant against incumbrances, and the notes and mortgage were made for the purchase-money; that the premises were incumbered by a judgment against one of the plaintiffs, under which a part of the land was sold and a deed executed by the sheriff to the purchaser; that the part thus sold was worth $2,500, which amount defendant offered to set off. Demurrers were sustained to the four last pleas; and the issues of fact formed on the other pleas were submitted to the court. The plaintiffs offered in evidence the mortgage set out in the scire facias, to which the defendant objected because it had not been recorded in the county of McDonough; but the court overruled the objection, and admitted the mortgage. The plaintiffs admitted that only the sum of $513.88 was unpaid on the notes, but they did not read the notes in evidence. The court decided the issues in favor of the plaintiffs, and found that there was due on the mortgage $513.88; for which amount judgment was entered, and a special execution awarded against the lands lying in Schuyler county. The question presented by the demurrer to the fourth and fifth pleas was fully considered and settled in the case of Hall v. Byrne, 1 Scammon, 140. That was a proceeding by scire facias to foreclose a mortgage, and the defendant pleaded a want of consideration, and a failure of consideration. The court decided that the statute authorizing such defences to be interposed did not extend to the case of a mortgage, and therefore held the pleas insufficient. The sixth and seventh pleas seek to set off unliquidated damages arising from a breach of covenants. A set-off is not allowable in this proceeding. The statute provides that a defendant “ in any action brought upon any contract or agreement, either express or implied, having claims or demands against the plaintiff,” may set up the same, and have them set off on the trial; and if there is a balance due him, he shall have judgment therefor against the plaintiff. A scire facias to foreclose a mortgage is not an action in the. ordinary acceptation of that term, and is therefore not within the operation of this provision. The case of Menard v. Marks, 1 Scammon, 25, is an authority in point. A scire facias is a proceeding in rem against the mortgaged premises. The object of the proceeding is to enforce a specific lien, and not to obtain a judgment in personam. The judgment only determines the amount due on the mortgage, and directs a sale of the mortgaged premises to satisfy the same and the costs. It creates no lien on the other property of the mortgagor, and the only process that can issue upon it is a special execution against the mortgaged premises. The other transactions of the parties are not to be taken into consideration in this proceeding. If the mortgage has been duly acknowledged and recorded, and the last instalment has become due, the only defences that can be interposed, are such as show that it was never a valid lien on the land, or that it has been discharged or released. The objection to the introduction of the mortgage in evidence was not well founded. The. mortgage became a matter of record by being registered in Schuyler county, and a scire facias could properly issue from the circuit court of that county. It was wholly immaterial for the purposes of this case, whether it was ever recorded in McDonough county or not. The pleas of non est factum and nul tiel record, only put in issue, the execution and registry of the mortgage. The plaintiffs fully sustained the case on their part, by the production of the mortgage duly acknowledged and recorded. The plea of payment presented an affirmative defence, which the defendant was bound to establish. As he offered no evidence in support of the plea, there was no necessity for the plaintiffs to produce the notes. The judgment is affirmed. Judgment affirmed.