26 Iowa 469 | Iowa | 1868
The petition avers, that plaintiff is the owner in fee of the land covered by the decree of foreclosure; that he purchased it of John Luscomb, who warranted the title against incumbrances; that said John Luscomb did not execute the mortgage foreclosed in said proceeding, but the same was executed by John W. Luscomb, who had no right, title or interest in and to said land, and that said mortgage was not, in fact, a lien or incumbrance upon the land, — all of which was well known to defendant when the mortgage was executed; that the original notice in the foreclosure suit was not served upon John Luscomb, but was, at the instance of defendant, served upon John W. Luscomb; that the mortgage was obtained by defendant, and its execution by John W. Luscomb procured, and the notice of foreclosure served on him, for the purpose of defrauding plaintiff and obtaining the title to said land; that these facts were unknown to plaintiff before the rendition of the decree of foreclosure, and that after the commencement of the suit he had made efforts to ascertain the place of residence of John Luscomb and communicate with him upon the subject of the mortgage, but had been unable so to do until after the expiration of the term of court at which the foreclosure decree was rendered, and did not until then obtain a knowledge of the defenses to said action above stated.
These allegations are presented in a confused manner
The appellant insists that plaintiff had a remedy at law by motion to set aside the default. This objection,
Affirmed.