John v. Hunt

1 Blackf. 324, 1824 Ind. LEXIS 24

Opinion

Holman, J.

Drew, in his life-time, mortgaged certain lands to JV. and A. Hunt, for securing the payment of a certain sum of money. After the decease of Drew, the money remaining un* paid, the Hunts sued out a scire facias against John, administrator of Drezo, to foreclose the mortgage; on which the plaintiffs obtained a judgment by default. The only question arising out of the case is, whether the heirs of Drew should not have been made parties in the scire facias. It is not to be presumed that a man dies without heirs. If such is the fact it must be shown. The equity of redemption belongs of right to the heir of the mortgagor; and he should be a party in any proceedings to foreclose the mortgage. Such is the British practice; and we see nothing in our acts of assembly which requires this practice to be changed.

Caswell, for the plaintiff. JYelson, for the defendants.

Per Curiam.

The judgment is reversed with costs. To be certified, &c.