It was objected that the scire facias read in evidence, was insufficient to give the court jurisdiction, to render a judgment for the foreclosure of the mortgage. It is true that it did not, in terms, require the sheriff to summon the defendant, but it required him to make known to defendant that he should show cause why a judgment should not be rendered. It in that respect adopted the language of the statute, giving and regulating foreclosures in this mode, and when the statutory requirements have been literally adopted, it must be held sufficient. That the command was, that he make known by honest and lawful men, could in no way affect the validity of the writ, and it was in form strictly in compliance with the ancient English practice. We are of the opinion that the writ was good and sufficient to confer, and did confer, jurisdiction upon the court.
It was likewise objected, that the sheriff’s return was insufficient to give the court jurisdiction of the person of the defendant. The sheriff made return to the writ, “ That I have made known by honest and lawful men, to wit: John Doe and Richard Roe, unto Seth Allen, administrator of Justus T. Rockwell, as I am within commanded.” While by the modern practice, it is . usual to return, that process has been served by reading it to the defendant, and this is no doubt the better practice, still this return is strictly in conformity with the former practice in England. 2 Lilly’s Entries, 399. By that practice it is required, where the defendant to a scire facias resides in the county, that he should have some notice of the proceeding, the sufficiency of which, if disputed, should be determined by the court. 2 Tidd’s Prac. 1037. And there appears to have been notice in this case, and it must be presumed that the court passed upon and determined that it was sufficient, and it is not open to be inquired into collaterally. We are therefore of the opinion that the return of service was sufficient to authorize the court to proceed to judgment in the case.
It was also urged, that the writ of scire facias was sued before the mortgage debt fell due, and that the judgment was for that reason void. If it be true that the debt was not due when process was issued, it was clearly ground for abating the suit, or it would have been available for the reversal of the judgment, on appeal or writ of error. But it cannot be held that it rendered the judgment a mere nullity. It is true that the statute only gives the right to foreclose by this mode when the entire debt is due, but courts have the jurisdiction to try and determine such causes, when they have the parties properly before them, and an error committed by the court in determining whether the demand is due or not, cannot render the judgment void. By the law, the plaintiff has no right to maintain an action, nor has the court the right to render judgment, for any Remand before it is due and payable, and yet, it has never been held, that a judgment rendered on a demand not due, was a nullity. And no difference is perceived when jurisdiction is exercised under a statute, or under the common law. The common law powers of our Circuit Courts are conferred by statutory enactment, as well as in this proceeding. While it was ground for abating the suit, or reversing the judgment on error, it cannot render it void, or authorize it to be inquired into collaterally.
The reversal of this judgment is also urged, because the heirs of the mortgagor were not made parties to the scire facias to foreclose the mortgage, and that the judgment and other proceedings are inadmissible in evidence in this cause. By the death of the' mortgagor, his right of redemption descended to, and was vested in his heirs, who were necessary parties to this or any other proceeding, intended to divest them of their right, unless it has been rendered unnecessary by legislative enactment. The statute giving this remedy, and regulating proceedings under it, to foreclose the equity of redemption, provides that a writ of scire facias may issue for the purpose, directed to the sheriff or other proper officer of the county, where the mortgaged premises may be situated, requiring him “ to make known to the mortgagor, or if he be dead, to his heirs, executors or administrators, 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.” This language is clear and explicit, that the plaintiff may, when the mortgagor is dead, at his election, make either the heirs, executors or administrators defendants, as he may choose. The language is in the disjunctive, and we can, by no known rule of construction, say that it requires the heirs to be parties, if the plaintiff shall choose to proceed against the executors or administrators. The writ was manifestly in compliance with the statute, and was therefore against the proper party.
It was also urged that the judgment in that case was insufficient to authorize or support a sale of the mortgaged premises, because it was rendered against the defendant who was the administrator, and failed to order a sale of the land, and to award a special execution for that purpose. That the judgment was erroneous, and that it might have been reversed on error, there can be no doubt. It should have ordered the sale of the mortgaged premises to satisfy the debt; and it should likewise have awarded a special execution against the premise's. Maury v. Marshall, 1 Scam. R. 282; Swigart v. Harbor, 4 Scam. R. 871. That the execution also might have been quashed and the levy and sale set aside, for the want of such order and award of execution, there can be as little doubt; but still it does not necessarily follow that these proceedings are void and may be inquired into, in a collateral proceeding.
The court rendering the judgment, we have seen, had jurisdiction of both the subject-matter and the proper parties, and whether the judgment it rendered was correct or incorrect, jt is, until reversed, binding in every other court. If, on the other hand, the court had acted without jurisdiction, and had therefore acted without authority, the proceedings would have been null and void, and could have conferred no right or protection to those claiming under them, and they might have been disregarded by the court below, although unreversed. Ibid. 371. The court having had jurisdiction, the judgment was therefore admissible in evidence, however erroneous it may have been. That it purported to be rendered against the administrator could make no difference, as he was a proper defendant, and this was so held in the case of Swig-art v. Harbor. The statute authorized the proceeding to be instituted against him, and it necessarily follows that the judgment must, when he is made a defendant, be rendered against him. There is in such case, no other defendant against whom it can be entered. To do justice, the court in such case, must for the purposes of the foreclosure, render the judgment against the defendant. And the judgment when rendered, must have precisely the same effect as if it were against the mortgagor himself, if he were living. To hold otherwise, would be to prevent the mortgagee from making any but the heirs defendants, which would be in violation of the statute. This is a proceeding in rem, and the judgment in that case could in no event have been for anything more than a sale of the mortgaged premises. The proceeding is against the mortgaged property and not against the administrator personally, nor against him de bonis testatoris, and whatever were its irregularities it was a judgment against the mortgaged premises. The court had no power or authority to render any other judgment, and its legal effect was, that it became a judgment against the lands, though informal in not ordering its sale, and in not awarding a special execution.
This judgment awarded an execution, and no other could legally have been awarded or issued in that case than one for the sale of the mortgaged property, and although informal, it was equally explicit and formal as was that in the case determined in Swigart v. Harbor, where the execution and sale under it were held binding. In that case, as in this, the judgment was against an administrator; there was no order for the sale of the land, and it only awarded execution in pursuance' of the statute, and we think that case is conclusive of this question. This court in that case held, that if the execution was irregular and unwarranted, it was the duty of the defendant to have applied to the court issuing it to have it quashed, and failing to do so, he could not question it in a collateral proceeding. And these proceedings, until reversed or avoided by a direct proceeding, are equally binding, on parties and privies, as on strangers to the record. We perceive no error in receiving the writ, return, judgment, execution and sheriff’s deed, in evidence on the trial below. And as the objections urged against the other portion of the chain in plaintiffs’ title, which succeeded the sheriff’s deed, were only based upon the insufficiency of this proceeding, it is not deemed necessary further to discuss this branch of the evidence.
It then only remains to determine, whether the proceedings in the action by scire facias and subsequent deeds, in connection with! the other evidence in the case, gave plaintiffs a right to recover. In an action to recover for damages to real estate, the plaintiff must show paramount title in himself, or an actual possession of the premises at the time of the commission of the injuries, for which suit is brought. The evidence in this case fails to show any title in Justus T. Rockwell. Whether he had any title does not appear, nor is it shown that the defendants were his heirs and claiming under the same title with the plaintiffs. The evidence also fails to show that plaintiffs were in possession, but rather that the defendants were. The plaintiffs therefore failed to make such a case as entitled them to recover ; and the verdict is not supported by the evidence, and a new trial should have been granted.
The judgment of the Circuit Court is reversed and the cause remanded.
judgment reversed.