57 Iowa 160 | Iowa | 1881
The demurrer was sustained, as, we understand it, upon the ground that the defendant was precluded by the statute of limitations from making the defense set up in the answer, and from asserting tbe claim made in tbe cross-petition.
The facts as averred in the petition are as follows: The plaintiff held a school fund mortgage upon the land, executed by one Collins, and at some time, the. date of which does not appear, the same was foreclosed. This mortgage was the first
The answer in addition to certain general denials avers as a defense that plaintiff’s decree of foreclosure, is, and was void, because the attorney who procured the same was at the time judge of the District Court in which said decree was entered, and that said attorney and judge heard, tried, and determined the said snit without the consent of any of the defendants therein.
As a further defense it is averred that said Collins who was owner of the land in question on the 12th day of November, 1858, executed a trust deed thereon to one Chapman, to secure the payment of certain moneys to this defendant. That said trust deed was duly foreclosed and the defendant became the purchaser at sheriff’s sale under said foreclosure, and received a sheriff’s deed therefor on the 31st day of December, 1863. That said conveyance was made to defendant long before the commencement of the foreclosure proceedings under which plaintiff claims. That this defendant was thereby invested with the legal title to the land, and she was not made a party to plaintiff’s foreclosure.
There is an admission in the answer that said Thompson took possession of the land, but there is a distinct and unequivocal denial that such possession has been open, peaceable and uninterrupted, with the knowledge of the defendant for ten years last past. The cross-petition sets out the same facts as to the foreclosure of plaintiff’s mortgage and defendant’s
The prayer of the cross-petition is, 1st., that plaintiff’s petition be dismissed. 2d. That plaintiff’s foreclosure proceedings be decreed to be null and void. 2d. That in case this relief be not granted them, that an account be taken of the rents and profits of the land and that defendant be permitted to redeem from plaintiff’s mortgage by paying whatever may be found to be due thereon. We have stated the issues raised by the pleadings sufficiently to enable us to determine what we regard as the vital questions in the case.
The plaintiff being a mortgagee in possession of the property, and the defendant being the holder of a junior mortgage, all rights under which are absolutely and completely barred by the statute of limitations, her mortgage is not available to her, either for the purpose of maintaining an action to redeem, or as the ground of a right to obtain possession of the land.
Affirmed.