Riley's Administrator v. McCord's Administrator

Scott, Judge, delivered the opinion of the court. 1. The question in this case is, whether the lien of a mortgage is merged in a judgment obtained in a proceeding under the statute to foreclose the mortgage. If the lien of the mortgage is extinguished by the judgment, the mortgagee is in a dangerous situation, such a one as would induce many mortgagees to forego the remedy provided by the statute; for the mortgage lien being extinguished by the lien of the judgment, obtained in the suit for a foreclosure, and the lien of the judgment taking effect from its rendition, if judgments should have been previously rendered against the mortgagor in favor of others, though subsequent in date to the mortgage, those subsequent judgment creditors would obtain a preference over a prior mortgage, though duly recorded. So proceedings for a foreclosure, under the statute, may be begun where any part of the mortgaged premises are situated. Mortgaged lands may be in several counties. The lien of a judgment is only operative in the county in which it is rendered, so that, in such cases, the mortgage lien will be destroyed. It is the just expectation of the creditor that, when he takes a mortgage, he has a security which lasts until the mortgage debt is paid. This is a reasonable expectation, and it should not be defeated, unless the law plainly requires it. The statute concerning mortgages was designed within itself to afford the mortgagee the means of enforcing the payment of his debt. There is no reason why the mortgagee, in resorting to the statutory remedy, should have his security, if not entirely extinguished, at least very much impaired. We should be loth to adopt such a construction, was there nothing but the general laws concerning judgments and administrations. But the legislature, it seems to us, never contemplated that the security of the mortgagee [288] should be lost to him by a resort to the statutory mode of foreclosure. The 4th and 17th sections of the act concerning mortgages, show that the legislature intended that the proceedings to foreclose a mortgage should not be arrested by the death of the mortgagor. When a judgment is obtained, the enforcement of that judgment is not suspended, as in ordinary cases, by the death of the debtor. The last clause in the 17th section of the act shows this very plainly. The 4th, in allowing the proceedings to be begun against an administrator of the mortgagor or debtor, indicates that it was designed that the process should continue, uninfluenced by any of the provisions of the administration law. Why suffer proceedings to be commenced in that way, when no other result is to be produced than would have resulted from a mere allowance of the demand ? The process to foreclose the mortgage going on as though the mortgagor had not died, none of the provisions of the statute concerning the administration of estates, which restrain the issuing of an execution against property in the hands of an administrator, have any effect in such case. The mortgage being a lien, created by express contract between the parties, the law does not interfere and control it, as in case of liens created by a mere operation of its own. The case standing unaffected by the administration law, it must be viewed as though it was between the original parties to the mortgage. Assuming then, that three years had expired after the rendition of the judgment, in the proceedings to foreclose the mortgage, whatever effect such efflux of time might have had upon the mere lien of the judgment, if any such thing existed, if the lion of the mortgage continued until it was satisfied, as we have maintained, such efflux could not have affected such lien. Why should it ? The mortgage was recorded. It was unsatisfied. No presumption of payment would arise until after the lapse of twenty years. The judgment itself, although by our statute it ceases to be a lien after three years, is not presumed to be satisfied until after the expiration of twenty years from [289] its rendition. Because a judgment has been rendered to foreclose a mortgage, why should the mortgagee be deprived of the security of the mortgage after three years, when the law only presumes the mortgage or lien of a judgment discharged after twenty years. The judgment on the proceedings for a foreclosure would have shown that it was founded on a recorded mortgage. It would have appeared that the judgment itself was unsatisfied-. How, then, could any one have sustained any injury by reason of the want of notice ? Another view may be taken of this subject. A mortgage creates a lien. It is not a mere lien. It is something more. It is an estate in the land, conditional, it is true; but the condition is, that it shall endure until the debt is satisfied. Why should a judgment unsatisfied destroy this estate against the express stipulation of the parties ? The act concerning mortgages, sections 4 and 17, shows that the personal representative, meaning the executor or administrator, is a sufficient party for all purposes under this statute. Judgment reversed, and cause remanded, Judge Ryland concurring ; Judge Leonard not sitting.