Burdick v. Norris , 2 Watts 28 ( 1833 )

Per Curiam.

The judgment on the mortgage might be too uncertain to.affect a third person; and did the lien on which the land was sold arise from it, and not from the mortgage, it’might be insufficient to hold the land, to the exclusion of other creditors. Butfor the purposes of lien and execution, the mortgage, being of record, was itself in the nature of a judgment, which required but a scire facias to give the creditor an execution; and that might undoubtedly be waived by the debtor, in despite of the objection of any one else. The difficulty in the present instance is to attach the agreement of waiver to this particular mortgage, as there may have been others for which it possibly was intended. But since the creditor has attached it to the land by an execution, the propriety of which has never been disputed by the mortgagor, who had alone a right to question it, on what ground shall we listen to the objection of a stranger! As to the remaining point, the verdict in the present action is perhaps uncertain ; but as the plaintiff has filed an agreement to permit the defendant to take the land reserved to him, at his election, as regards the boundaries, the defect is cured by it; just as the defect in a verdict is cured by releasing the excess of damages found, above the sum laid in the declaration; which may undoubtedly be done in the court below; and the increasing liberality of courts of error, renders it unnecessary to send the record back to have it done there, previous to an affirmance of the judgment here. The agreement will go back with the record, and the court below will take care to see it executed.

Judgment affirmed.