3 Or. 361 | Clackamas Cty. Cir. Ct., O.R. | 1871
Bv the Court.
I think tbe complaint is insufficient. In order to maintain this suit tbe plaintiff must show tbat tbe defendants are not entitled to tbe premises, either under tbe foreclosure or under tbe deed executed subsequently.
If tbe allegation is true, tbat Mr. Harper was insane when be executed tbe mortgage, that is a fact tbat might have been plead and proved in tbe foreclosure suit. As a géneral rule a judgment or decree of a court having jurisdiction cannot be attacked collaterally; and when a decree is attacked for want of jurisdiction, it is not a sufficient showing of such lack, to declare tbat tbe defendant was insane at tbe time. It does not appear by this complaint but tbat Harper was duly served and appeared by guardian. Nor is any reason shown why bis alleged insanity was not plead in tbat suit. In fact there is nothing set forth in this complaint to show tbat tbe same allegations tbat are made in this complaint were not set up and passed upon in tbe foreclosure suit. For aught tbat appears, tbe court in which tbe mortgage was foreclosed, may have beard and determined tbe matters which tbe plaintiff now seeks to present, and it does appear tbat tbe court then pronounced a decree upon tbe subject matter involved in this suit; tbat is, tbe due execution of tbe mortgage. A plea of insanity may have been negatived;' or tbe present plaintiff may, have been represented by guardian and may have failed to set up tbe in
The demurrer should be sustained.
