Clough et al., ex'Rs v. Fellows

Clough & a., Ex'rs, v. Fellows.

In scire facias on a judgment of foreclosure, a plea of the defendant’s administrator that the judgment was rendered in fraud of the defendant’s creditors, need not set forth the names of the creditors, the amounts duo them, or the nature or dates of their claims. If justice requires a specification on the subject, it can be obtained on a motion for an order.

In such a scire facias, a plea of paramount title acquired by the defendant after the judgment of foreclosure may be allowed, if it would be a just and convenient step of procedure under the circumstances of the case. If the plea is rejected during the pendency of other pleas on which the plaintiff ultimately prevails, the writ of possession may be stayed until the question of paramount title is determined in the same or some other suit.

Scire F actas, by the executors of Herman Foster, on a judgment of foreclosure, for a writ of possession of land at Goffe’s Falls. Clark, administrator of the defendant, pleads that the defendant’s estate is insolvent, and is administered as insolvent; that nothing was due on the mortgage when the judgment was rendered; that if anything was due, the judgment was rendered for a sum greatly in excess of the debt; and that the judgment was entered in fraud of the creditors of Fellows, and upon a fraudulent agreement of Fellows and Foster that it should be so rendered, with intent to hinder, delay, and defraud the creditors of Fellows. The third plea is of paramount title acquired by Fellows after the rendition of the judgment. The plaintiffs demur.

Chase Sf Streeter and Jeremiah Smith, for the plaintiffs.

A title paramount to the mortgage cannot be set up in defence to a foreclosure suit. “ Only the rights and interests under the mortgage and subsequent to it can properly be litigated upon a bill of foreclosure.” Woodward v. Haven, Grafton, January T., 1871 (unreported); Corning v. Smith, 6 N. Y. 82; Lewis v. Smith, 9 N. Y. 502; Cronin v. Hazeltine, 3 Allen 324; Gerrish v. Black, 122 Mass. 76; 2 Jones Mort. (2d ed.), ss. 1589, 1440, 1445. In Woodward v. Haven, it was decided that where a bill to foreclose a mortgage is brought against the owner of the equity of redemption, who is also the equitable assignee of a prior mortgage, and a decree for foreclosure is rendered, the owner of the equity is not thereby estopped from afterwards setting up his prior mortgage. This decision was based upon the position that the existence and validity of the prior mortgage were not a proper subject of litigation in the suit to foreclose the second mortgage.

There is another objection to this plea. Even if the mortgagor could have pleaded in the original suit a paramount title, which he then held, it does not follow that he can now plead to the scire facias a paramount title which he has acquired since the rendition of the original judgment. In Bradford v. Bradford, 5 Conn. 127, it was held that in a scire facias brought to obtain an execution on a former judgment in ejectment, it is incompetent for the defendant to controvert the title determined by such judgment; that if he has acquired a new title since the original judgment, he may maintain an action founded on such title, but cannot set it up in defence to the scire facias.

B. P. Cilley and C. R. Morrison, for the defendant,

cited, on the question of paramount title, Hedge v. Holmes, 10 Pick. 380, Bailey v. March, 3 N. H. 274, Bell v. Woodward, 34 N. H. 90, Stark v. Brown, 40 N. H. 345, Wheeler v. Bates, 21 N. H. 460, Wilson v. Webster, 6 N. H. 419, Cronin v. Hazeltine, 3 Allen 324, Shears v. Dusenbury, 13 Gray 292, Bradford v. Bradford, 5 Conn. 127, Washburn R. P. 598, and Jones Mort., ss. 952, 1300, 1305.