52 Iowa 654 | Iowa | 1879
February 6th, 1878, Willett conveyed to Frederick, Paul and Franz Mally. April 5th, 1878, Franz Mally conveyed his interest in the premises to Laura Schlanker. Under the title derived as above the plaintiffs claim the immediate possession of the property. The defendants insist that the plaintiffs are not entitled to the immediate possession of the property because of the provisions of the written contracts set out in the answer and the amendment thereto. The plaintiffs in the foreclosure suit prayed for an unconditional foreclosure of the mortgage. The decree rendered is an absolute one, accompanied with the usual incidents, and to be followed by the usual consequences of an absolute foreclosure. It authorized a sale, to be followed, in the absence of redemption, by a sheriff’s deed, entitling the purchaser to immediate possession. Such a sale has been made, and such a deed has been executed. If any facts existed at the time of the foreclosure, under which the plaintiffs would not have been entitled to an absolute decree of foreclosure, those facts constituted, fro tanto, a defense to the plaintiffs’ action, and should have been pleaded as such in the foreclosure proceeding. These written contracts constituted such partial defense, or they did not. If they constituted such partial defense, they should have been set.up and relied upon in the foreclosure proceeding, and cannot be made available now. Hackworth v. Zollars, 30 Iowa, 433; Dewey v. Peek, 33 Iowa, 242; Lawrence Savings Bank v. Stevens, 46 Iowa, 429; Collins v. Chantland, 48 Iowa, 242.
If these contracts did not then evidence a condition of things which would have prevented an absolute foreclosure, they cannot now be set up to deprive the plaintiffs of the benefits of the absolute foreclosure which they have obtained.
The defendants did offer to set up the contract set out in the original petition, as- a defense in the foreclosure proceeding, but not until after the court had announced its judgment in the case. The court refused to allow the amendment as coming too late. It was clearly within the judicial discretion of the court to refuse to allow the amendment under the cir
Affirmed.