4 Iowa 577 | Iowa | 1857
The complainant seeks relief in equity-, against certain proceedings had in the District Conrt of Muscatine county, to foreclose a mortgage given by him on certain lands in said county, and for a decree that shall ■allow him to come in and pay off and discharge the mortgage. He also seeks such a discovery from the respondents, as shall inform him of the true state of facts, in respect to the sale of said lands, made by the sheriff under the decree rendered in said suit. The reasons alleged by the complainant, why the proceedings in said foreclosure suit should be set aside, and the sheriff’s sale held -for naught, are, that at the time of the commencement of the snit, he was a resident of the state of Illinois; that there was no such notice given of the pendency of the suit, as is required by law; that the suit was commenced on the 18th of May, by delivering the original notice to the sheriff; that the same was by him on the next day, “returned not found;” that the term of the District Court, at which the decree of foreclosure was rendered, commenced on the .7th of June thereafter; and that the four weeks’ notice by publication, required by law, could not have been given between the ¡said 14th of May, and 7th of June succeeding; that no return has been made by the sheriff of the -execution, on which the lands were sold, and no deed for the same from the sheriff to the purchaser is on record; that the complainant Only knows from rumor, that such sale has ever been made, and is informed and believes that one of the piece s of land, the same having been sold in parcels, brought, at the sheriff’s
The respondent Comer, while he, by his answer, claims the legal and equitable title in the land, makes no answer to the material allegations of the complainant’s bill. The facts as to the means by whieh the decree was procured, and land sold, being charged to have been within the knowledge of Comer, and to have been done at his instigation, not being replied to by him, are to be taken as true; and we have only to inquire, whether the new matters set up by Comer, in his answer, by way of defence, are sufficient to defeat complainant’s right to the relief prayed for. In this answer, without making it a cross bill, or seeking any discovery from complainant, in reply to its averments, Comer prays that the court, on final hearing, will decree the lands to him. And that complainant be required to convey the lands to him by good and sufficient deed.
The respondent cannot pray anything in his answer, except to be dismissed the court. If he has any relief to pray, or discovery to seek, he. must do so by a bill of his own, or he may make his answer a cross bill. Morgan v. Tipton, 8 McLean, 389 ; McConnell v. Hodson, 2 Gilman, 640; Daniell’s Chancery Practice, chapter 31. The matters set up by the answer, are not presented in such shape as to be available to respondent, either as a bar to the relief sought by complainant, or as ground on which the court can base any decree in favor of respondent.
"Waiving, however, for the present, all questions as to the form in which the matter of the answer is presented, we in
Decree affirmed.