The opinion of the Court was delivered by
Sergeant, J.The defence in this ejectment was, that the money due on the mortgage had been fully paid and satisfied before the institution of the scire facias in which judgment was obtained, execution issued, and the land sold by the sheriff to the present plaintiff. And the question is, whether a return of service of the scire facias on a tenant in possession under the alienee of the mortgagor, who holds by a deed subsequent to the mortgage, is such a service that the judgment therein binds the alienee, without further proof of his knowledge of the proceedings. The court below were of opinion that it was not, and in this we think there was no error. If the plaintiff in the scire facias means to bind the alienee by a proceeding against him as terre-tenant, the service ought to be upon him, or it should appear that he had notice of the pendency of the suit, and an opportunity to defend it. It would be right and proper that tenants should, in all cases; give notice to their landlords of the service of process upon them affecting the title of their landlords, but, there is no law obliging them to do so, in a case like the present. In ejectment, the tenant is required to give notice, by act of assembly, under a penalty. It would be dangerous to the interests of the landlord to hold, that service of process affecting the land, on his tenant, is service on him, where the tenant may or may not inform him of it at his own option, and with impunity. It is to be observed, in the present case, that although the mortgagor was a party in the scire facias, yet there was no return of .service as to him, or appearance expressly for him, or judgment against him on nihil dicit. The appearance of the attorneys is for defendant, and that must be taken to mean the defendant who was served. The sole question is as to the efficacy of a service on a tenant.
Judgment affirmed.