Opinion
Fall Sessions, 1840.
Wales, for plaintiff.
W. H. Rogers, for defendant.
SCIRE FACIAS on a mortgage. Pleas payment, and that James Ocheltree, the mortgagor, had no interest or estate in the mortgaged premises other than a life estate which has terminated by his death.
Mr. Wales moved to strike out this last plea.
The question is, whether a plea which purports to try the title of the mortgagor in the mortgaged premises can be 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. The 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 recovered, would be of no more than the mortgagor's estate, whatever it is; discharged of the equity of redemption, and all other incum-brances of the mortgagor. ( Dig. 206.) It would be monstrous to extend it further. It would be to sell one man's land on the mortgage of another without notice or remedy.
Plea struck out and judgment for plaintiff.