Malsberger v. Parsons

Citations

• 24 Del. 254
• 1 Boyce 254
• 75 A. 698
• 1910 Del. LEXIS 30

Syllabus

<p>Scire Facias—Nature of the Writ—Mortgages—Security for Debt— Foreclosure—Defenses—Pleas—Non Est Factum— Nil Debit—Collateral Security or Indemnity —Payment of Debt—Discharge of Mortgage given as Indemnity.</p> <p>1, A writ of scire facias, at common law, in a certain degree is in the nature of an original writ though in strictness it is a judicial writ founded on some matter of record. Considered in regard to its nature and with respect to the judicial or non judicial character of the record upon which it issues, if the record is one of a judicial determination, as a judgment, the writ is merely a continuance of the former action, and in that case, it is a judicial writ to recover process to enforce liability on the judgment; but if the writ is founded on a non judicial record, as a patent, it is in the nature of on original writ for the commencement of the action.</p> <p>2, A mortgage is merely a security for the payment of a debt, or for the performance of some other condition, the estate of the mortgagor in the land remains in him and the mortgagee acquires only a chattel interest.</p> <p>3, Notwithstanding the form of a mortgage, a mortgagee takes no title to the land, but merely a lien upon it.</p> <p>4, In a scire facias on a mortgage, the defendant may, under the statute, plead satisfaction, or payment of all; or any part of the mortgage money, or any other law plea in avoidance of the deed, as the case may require, but the pleas in defense of the action must be such as are appli- . cable to the mortgage, and not to a record.</p> <p>5, In a scire facias on a mortgage, the plea of non est factum is a proper plea to avoid the mortgage, and puts in issue the excution thereof.</p> <p>6, Pleas in avoidance of a deed are not limited to those which show the deed void, but extend to special pleas which go to avoid its effect.</p> <p>7, _ In an action on a_ specialty, where the deed is the foundation of the action, and not mere inducement, the plea of nil debit is