
    JAMES MENDENHALL’S Ex’r. vs. JAMES OCHELTREE’S Ex’r.
    In a sci. fa. on a mortgage against the executor of the mortgagor alone the executor cannot plead a piea that belongs exclusively to the heir or terre-tenant; as that the mortgagor in fee had only a life estate in the promises.
    A sale under such a sci. fa- would not prejudice the heir or terre-tenant beyond the interest of the mortgagor.
    Scire facias on a mortgage. Pleas payment, and that James Ocheltree, the mortgagor, had no interest or estate in the mortgaged I premises other than a life estate which has terminated by his death.
    
      Mr. Wales moved to strike out this last plea.
    
      Wales, for plaintiff.
    
      W. H. Rogers, for defendant.
   Per Curiam.

The question is, whether a plea which purports to I try the title of the mortgagor in the mortgaged premises can be I pleaded in a scire facias on the mortgage against the executor, and| not against the heirs or terre-tenants. We think not. This is a proceeding against the executor, and to which the heir is no party. Thel executor may plead any lawful plea in avoidance of the deed, as non! est factum,.payment, &c., but he cannot deny the mortgagor’s title,! which is expressed on the mortgage to be a fee. Nor is it necessary! to the protection of the heir that he should be allowed to plead thus/ The sale on a levari facias issued on any judgment now to be re-j covered, would be of no more than the mortgagor’s estate, whatever it is; discharged of the equity of redemption, and all other incum-l brances of the mortgagor. (Dig. 206.) It would be monstrous tc extend it further. It would be to sell one man’s land on the mort| gage of another without notice or remedy.

Plea struck out and judgment for plaintiff.  