78 Iowa 350 | Iowa | 1889
It appears from the record that one George J. Gray was the owner of eighty acres of land in Plymouth county, and that, on the fifteenth day of May, 1875, he mortgaged the same to C. D. Rogers to secure the payment of two hundred dollars, with interest. On the twenty-eighth day of June, 1876, said Gray made a certain other mortgage upon said land to the plaintiff, to secure the payment of one hundred and sixty dollars and interest. Rogers, being an owner of the senior mortgage, commenced an action to foreclose the same, and a decree of foreclosure was entered at the July term, 1878, of the Plymouth district court, as against the mortgagor. It was recited in the petition for foreclosure that Edward Lindsey claimed to have a lien on said real estate, but that ‘the same was junior and inferior to the mortgage held by Rogers, and Lindsey was made a party by the name of “Edward” Lindsey, and a foreclosure was demanded as against him. No service of an original notice was had upon Lindsey, and no action was taken as against him at the time at which the decree was entered against Gray, the mortgagor, but the cause was continued from term to term for service. On the first day of July, 1880, service was had upon Lindsey, and, as a question is made as to the sufficiency of the original notice and service, we will here set out the same in full. It was as follows •
“ State of Iowa,
‘ ‘ Plymouth County.
“ In the district court for Plymouth county, Iowa, at October term, A. D. 1880. C. D. Rogers, plaintiff,
“Argo & Kelley, Attorneys for Plaintiff.”
The acceptance of service endorsed upon said notice read as follows:
“I hereby accept due service of the within notice on me in Plymouth county, Iowa, this first day of July, 1880, and waive the delivery of a copy thereof to me.
“Edmund Lindsey.”
Lindsey made no appearance to the action, and at the October term, 1880, a default and decree of foreclosure was entered against him. Before the decree was rendered the land had been sold at foreclosure sale, and a sheriff’s deed had been made, and the land had been conveyed, through some two or three successive grantors, to the defendant in this action.
Next, and lastly, plaintiff claims that, as the forelosure sale was had years before the decree foreclosing Lindsey’s right to redeem, the decree had no other force than to compel Lindsey to redeem within the ten years provided by the statute of limitations. We do not think that the decree was a nullity, and it surely
Finally we have to say that there is no equity in the claims of the plaintiff. The undisputed evidence is that he knew all the facts in connection with the foreclosure, and was urged to redeem, and declined to do so, as we presume, on the ground that the land was not of sufficient value. He chose rather to allow the land to pass into the hands of innocent purchasers, who have fenced and otherwise improved it, and, after the lapse of about six years from the foreclosure of his lien, he commenced this suit, and is attempting to extinguish the first mortgage, so far as he may be allowed to do so, by setting off the rents and profits of the land.
In our opinion the decree of the district court should be reversed, and the plaintiff ’ s petition should be
Dismissed.