28 Iowa 27 | Iowa | 1869
The right to redeem is claimed upon two bases of fact: First, that there was a fraudulent combination between Krapfel and Theviot to deprive plaintiffs of their homestead ; that the latter procured her acceptance of service upon his cross-petition in ignorance of its contents, by false representations, to the effect that he was thereby aiding her to defeat Krapfel’s mortgage, in order to save the homestead for her. Second, that the cross-petition of Theviot contains no allegation in reference to Anna M. Pfiffner’s right to redeem the property, nor any averment calculated to apprise her that such right was to be called in question; that the prayer of the cross-petition did not ask that such right of redemption be barred, nor does the judgment, in terms, or otherwise, profess or purport to bar such right. The appellants also claim, as a matter of law, that, since the right to redeem property sold for taxes is expressly given by statute to a married woman, and such right in this case had become fixed and vested, the court could not, any more than the legislature, take away or cut off that right; in other words, the court had no power or jurisdiction to do so.
As to the first basis of fact as claimed by appellants, it may be remarked that while there is but little, if any thing, in the direct testimony of the witnesses tending to show actual fraud on the part of Krapfel or Theviot, yet there are facts and circumstances, disclosed in the entire record of the case, tending to show a combination between them, effectuating a surprise and fraud upon Anna M. Pfiffner. Some of these may be mentioned : Mrs. Pfiffner
Our system of pleading is essentially a fact system, intended to require the parties in judicial proceedings to state the facts of their claim and advise the opposite parties of the true nature and object of the suit. It is against the spirit and plain intent of our Code to allow parties to claim as fruits, of their litigation, that which was not by the fair and obvious import of the pleadings putin issue and litigated between them. This, we have already substantially held in Moomey v. Maas (22 Iowa 380), where a widow who had not joined in the mortgage was held not barred from asserting.her dower in certain real estate, by reason of the mortgage foreclosure decree and sale of the same property, although she was a party defendant thereto and duly served with notice. So in Standish v. Dow et al. (21 Iowa, 363), it was held that a senior incumbrance by trust deed was not barred by the foreclosure decree of a junior mortgage, although the cestui que trust was a party, and duly served with notice of such foreclosure proceedings.
This effectually disposes of all three of the cases, and substantially, in result, the same as the report of the referee. The judgments will therefore be reversed, and remanded with directions to the District Court to render judgment in accordance with and upon the report of the referee.
Reversed.