Herron ex rel. Murray v. Stevenson

Citations

• 259 Pa. 354

Syllabus

<p>Mortgages — Death of mortgagor — Decedent's estate — Scire facias against heirs — Failure to join administrator — Affidavits of defense —Insufficiency.</p> <p>1. While lands are assets for the payment of debts, they are not assets in the hands of an administrator and without an order of the Orphans’ Court he has nothing to do with them. In case of intestacy they descend to the heirs, and if needed for the payment of debts they must be converted in the manner provided by the statutes.</p> <p>2. In an action of scire facias sur mortgage, where it appeared that the mortgagor had died intestate, the heirs were properly made parties defendant and it was not necessary that the administrator of the decedent be joined, in the absence of anything to show that the decedent’s real estate was needed for the payments of debts, and the court properly held insufficient an affidavit of defense which merely set up that the action could not be maintained because the administrator has not been joined as party defendant.</p> <p>3. In such case where the note was under seal there is no merit in the contention that the mortgagor was not a party to the note and it- was therefore without consideration, where no failure or illegality of consideration is alleged.</p> <p>, 4. The doctrine that interest as against the surety does not begin with the default by the principal, but from the time when demand was made, applies only to cases arising ,on. official bonds.</p>