6. PLEADING (§ 115*)-PLEAS NIL DEBET.

In an action based on a specialty, the plea of nil debet is improper; since matter in avoidance or discharge of the specialty must be specially pleaded, so that it can be determined by the court as a question of law.

[Ed. Note. For other cases, see Pleading, Cent. Dig. § 240; Dec. Dig. § 115.*]

7. MORTGAGES (8 454*)-FORECLOSURE-SCIRE FACIAS-PLEA OBJECTIONS.

Where objections to a plea of payment in scire facias on a mortgage are such as may be presented by special demurrer, a motion to strike the plea will be denied.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. § 1322; Dec. Dig. § 454.*]

8. MORTGAGES (§ 15*)-PURPOSE OF MORTGAGE -SECURING DEBT OF THIRD PARTY. Property may be mortgaged for purposes other than to secure a debt due the mortgagee from the mortgagor.

[Ed. Note. For other cases, see Mortgages. Cent. Dig. § 17; Dec. Dig. § 15.*] 9. MORTGAGES (8 454*) - FORECLOSURE DE FENSES - PLEADING MATURITY OF MORT

GAGE DEBT.

In scire facias on a mortgage, defendant pleaded that the mortgage was executed by the mortgagor as collateral security for another's debt to a trust company, the same having been executed to an officer of the company, who, by an agreement with it and the mortgagor, was to hold the property as collateral security under an agreement that the mortgage should not be enforced until all other collateral securities for the debt should be realized upon, that the trustee or trust company held other securities for the debt not yet realized upon, so that the mortgage cannot be proceeded upon until such collaterals have been realized upon. Held, that the plea was that the secured debt was not then due, so that an action on the mortgage had not accrued, and hence was not demurrable.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 1323; Dec. Dig. § 454.*] 10. MORTGAGES (§ 299*)-DISCHARGE-INDEMNITY MORTGAGE PAYMENT OF DEbt. A mortgage executed to indemnify the mortgagee against a debt for which he is secondarily liable is discharged by operation of law when the debt is discharged, so that a mortgage to be held by the mortgagee to protect another on his guaranty of a debt due a different person would be discharged when the debt was paid to the latter.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. § 866; Dec. Dig. § 299.*]

Action by George N. Malsberger against Wesley E. Parsons and wife and another as intervener. On demurrer to pleas and motion to strike plea. Demurrer overruled and sustained as stated, and motion to strike denied. Argued before PENNEWILL, C. J., and WOOLLEY, J.

signees, the assignment of the mortgage to

himself, avers the nonpayment of the debt intended to be secured thereby, and prays that it be made known to the mortgagors to appear and show cause wherefore the mortgaged premises should not be seized and taken in execution, and sold to satisfy his mortgage money. At the return term of the writ, Mary E. Sutton, who, by her petition, claimed Ownership of the mortgaged premises, was permitted by the court to intervene and make defense to the action.

To the writ Mary E. Sutton pleaded (1) nil debet; (2) non est factum; and four special pleas, which in substance are as follows: (3) "Actio non, because she saith that before the commencement of this suit, on a day named, there was paid to the plaintiff or one of his assignors, then the holder of the mortgage, the full amount of the principal and interest due thereupon." (4) Accord and satisfaction. (5) "Actio non, because she saith that the mortgage was executed and delivered by the mortgagors as, and only as and for, collateral security for a certain debt of one Isaac C. Atkinson to the Girard Life Insurance, Annuity & Trust Company of Philadelphia, the same having been executed to the said Albert Atlee Jackson, an officer of the said trust company, and who, by an agreement with the mortgagors and the said trust company, was to hold the same only as collateral security under and subject to a covenant and agreement that the mortgage and bond accompanying it should not be proceeded on until after all other collateral securities held by the said Jackson or the said trust company for the said debt should be realized upon; that, in addition to the said mortgage, the said Jackson or the said trust company held certain other securities for the said debt so due by the said Atkinson to the said trust company, among which securities that have not yet been realized upon are certain bonds, mortgages, and shares of stock (particularly mentioned and described), and in accordance with the agreement under which the said mortgage was executed and delivered the said mortgage cannot be proceeded upon until all of the said collaterals have been realized upon; that the plaintiff and all those from whom he derives title to said mortgage took the same with full knowledge of the premises," etc. (6) "Actio non, because she saith that the said mortgage was executed and delivered by the said mortgagors for the sole

tain debt or obligation owed by the said Atkinson to the said trust company, the payment of which obligation one John Sparhawk, Jr., guaranteed, and the said mortgage was executed and delivered to protect the said Sparhawk against liability on his guaranty and for his use and benefit; that the said obligation for which the said mortgage was given as collateral security, has been fully

paid and discharged unto the said trust company, and that at the time the said mortgage was assigned unto the said Sparhawk there was and is nothing due thereon, and that the plaintiff took the mortgage with full knowledge of the premises," etc.

The plaintiff has filed general demurrers to the first, fifth, and sixth pleas, joined issue on the second plea, and has moved to strike out the third plea, while the defendant has withdrawn the fourth plea.

the remedy of scire facias, which at that time was known as a process of law courts of a particular and well-defined character. To ascertain the meaning of the Legislature in making scire facias the process for an action at law upon a mortgage, it is necessary to consider the nature of the process of scire facias as it existed at the time it was adapted to the remedy provided by the statute, as well as the nature of the obligation for the enforcement of which the remedy at law was supplied.

sue

fenses in this action were pleaded (Rev. Code, c. 111, § 56) is the same as that which granted the remedy of scire facias on a mortgage, and reads as follows: "The defendant in a scire facias on a mortgage, may plead satisfaction, or payment, of all, or any part of the mortgage money, or any other lawful plea in avoidance of the deed, as the case may require."

1. Under the general demurrer to the plea of nil debet, it is urged that, in an action of scire facias on a mortgage of the character contemplated by the statute, the plea of nil debet is inappropriate, and is therefore a nullity. To determine this question, it is necessary to ascertain, first, whether the action is on the mortgage or on the record of the mortgage; and, second, if upon the mortgage, whether it is a proper plea in an action upon a specialty of such a character. If the plea should be found inappropriate for different reasons in either event, it becomes necessary under the demurrers to the fifth and sixth pleas to consider for the purposes of this case what defenses may be pleaded under the statute awarding the right to make defenses of satisfaction, payment, and in avoidance of the deed. By the enactment of the statute referred to, the colonial Legislature conferred upon the law courts a jurisdiction theretofore exclusively equitable, and provided a convenient, simple, and speedy remedy which was intended to be administered in accordance with the terms of the statute and without regard to the more cumbersome methods of courts of equity in foreclosure suits. In conferring upon the law courts jurisdiction to enforce the obligations of mortgages, the statute at the same time supplied the instrumentality by which that

ed, are divided into two classes. When the record upon which the writ issues is a judicial record—that is, when the record is in character and substance a judicial determination, as a judgment—the writ of scire facias is merely a continuance of the former action. In such an instance liability is fixed and established by the original judgment, and scire facias upon the judgment is but a judicial writ to secure an award of process to enforce that liability. The money is due upon the former, though the right to sue out execution for collecting it is given, or rather revived or renewed, by the latter. Silver v. Rhodes, 2 Har. 372. The writ of scire facias, when founded on a nonjudicial record—that is, when founded on a record that is not a judicial acknowledgment or adjudication, as a patent, or corporate charter, at common law-partakes of the nature of an original writ, and is the commencement and foundation of the action.

To ascertain whether the record of a mortgage is judicial or nonjudicial in character, it is necessary to make inquiry into the nature of a mortgage. Whatever may have been the ancient idea of a mortgage being a conditional deed or a defeasible conveyance, it is now well settled in this state that a mortgage is merely a security for the payment of a debt, or for the performance of some other condition. It is not a conveyance of the title in the land, and as a consequence the mortgagee acquires only a chattel interest, and cannot maintain ejectment for the possession of the land. Although a mortgage purports on its face to convey the mortgaged premises to the mortgagee-subject to a proviso that such conveyance shall be void upon the payment of a certain sum of money, or

mentioned-nevertheless a mortgage has long ceased to be regarded in this state as a conveyance of the property.

A mortgage being but a high 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, upon alienation or death, passes to his grantee, devisee, or heir, subject to the lien of the mortgage. What is called the equity of redemption is in this state the title to the mortgaged land, with the right to redeem it from the incumbrance of the mortgage. The mortgagee takes by the mortgage, notwithstanding its form, no title to the land, but merely a lien upon it, which, upon his dying intestate, passes not to his heir at law, but to his executor or administrator. A mortgage no more divests the title of the mortgagor in the mortgaged premises than does a general judgment divest the title of the defendant in land bound by the lien of such judgment. Fox v. Wharton, 5 Del. Ch. 200, 225, et seq.; Cooch's Lessee v. Gerry, 3 Har. 280; Robinson v. Harris' Lessee, 3 Har. 283, note "a"; Cornog v. Cornog, 3 Del. Ch. 407, 416, et seq.; Grant v. Jackson & Sharp Co., 5 Del. Ch. 404, 411; Hall v. Tunnell, 1 Houst. 320, 326; Walker v. Farmers' Bank, 8 Houst. 259, 10 Atl. 94, 14 Atl. 819; Seals v. Chadwick, 2 Pennewill, 381, 45 Atl. 718; Ellison v. Dolbey, 3 Pennewill, 45, 5253, 49 Atl. 178. It would therefore seem that the registering of a mortgage is not a judicial act in the sense that would make the record a judicial record.

With this general understanding of the rules of law relating to the process of scire facias, the provincial assembly of Pennsylvania, by the act of 1705 (1 Smith's Laws, p. 57), provided the remedy of scire facias on a mortgage for Pennsylvania. The colonial Legislature of Delaware in 1726-1736 (1 Laws Del. c. 46, p. 112) enacted for Delaware a statute almost identical with that of Pennsylvania. Seals v. Chadwick, 2 Pennewill, 389, 45 Atl. 718. In Illinois the remedy of scire facias on a mortgage was provided by an act of 1825 (Laws 1824-25, p. 157), which differs in one material respect from the acts of Pennsylvania and Delaware; and in Ohio the remedy was provided by an act of 1810 (1 Chase's St. p. 645, c. 205), some of the provisions of which were copied from either the Pennsylvania or Delaware enactment. So far as we have been able to learn, these four states are the only states that have extended or applied a proceeding by scire facias to an action a mortgage.

An examination of the statutes of Illinois, Ohio and Pennsylvania, so far as they have been found, shows that their provisions have been interpreted literally and without a close regard to the meaning and principles of the writ of scire facias at common law. The courts of the several states named, like the superior court of Delawarę in Seals v. Chad

wick, 2 Pennewill, 381, 45 Atl. 718, seem to have been governed by the controlling force of the language of their respective statutes, rather than by the technicalities of the writ or the nature of the remedy. In Illinois the writ of scire facias issues upon the record, in Pennsylvania it issues upon the mortgage, and in each state the writ issues in accord with the language of its statute. The remedy by scire facias on mortgages in Illinois was conferred by an act of that state of January 17, 1825, entitled "An act concerning Judgments and Executions," in which it is provided "that if default be made in the payment of any sum of money, secured by mortgage on lands and tenements, duly executed and recorded, it shall be lawful for the mortgagee to sue out a writ of scire facias, * to make known to the mortgagors

to show cause, if any they have, why judgment should not be rendered for such sum of money as may be due by virtue of said mortgage," etc. Gales St. 393, Rev. Laws, p. 376.

In Illinois a mortgage is not considered merely a high security for the payment of a debt, but is held to be a conveyance of land by the debtor to his creditor as a pledge for the payment of the money due. Because of the language of the statute, and by reason of the character of a mortgage, as viewed in that state, the Illinois courts hold that a scire facias issues upon a debt of record, and that the proceeding is one of execution upon the record, and is not an action on the mortgage in the ordinary acceptation of the term. Hence nul tiel record is the general issue which puts in issue only the registry of the mortgage. No defense may be pleaded excepting such as at common law go to payment, discharge, or release of the matter of record. Menard v. Marks, 2 Ill. 25; Hall v. Byrne, 2 Ill. 140; Woodbury v. Manlove, 14 Ill. 212; White v. Watkins, 23 Ill. 426; Carpenter v. Mooers, 26 Ill. 162. The difference in the language of the statutes of Illinois and Delaware, as well as the dif ference in the ideas of a mortgage that maintains in these states, deprive the Illinois decisions of authoritative weight in making an interpretation of the Delaware statute.

We have been unable to find that portion of the Ohio statute which confers the remedy of scire facias on a mortgage, but from the portion of the statute authorizing certain defenses, it would be inferred that the writ issues upon the mortgage and not upon the record. In Raguet v. Roll, 7 Ohio, 77, pt. 1, Hitchcock, J., referring to the statute, said: “At the close of section 1, it is provided that, upon the return of the scire facias, it shall be lawful for the defendant or defendants to come in and plead payment, or satisfaction for all or any part of the money demanded by the plaintiff or plaintiffs, or any other legal plea in bar, or avoidance of the deed or money therein demanded, as the case may