80 Iowa 668 | Iowa | 1890
— I. The plaintiff seeks in this action to establish his right to redeem from a decree of foreclosure of a mortgage, and a sale thereon. The mortgage was executed by himself and wife to defendant Fleckenstein, and was foreclosed, and the real estate in controversy was sold to the mortgagee, upon a decree rendered in 1879, the mortgagee becoming the purchaser. A sheriff’s deed was executed to the purchaser at the sale, after the expiration of the time for'redemption; and thereupon he went into possession of the property. Plaintiff seeks to redeem on the ground that, as he was not served with original notice of the commencement of the suit, he is not bound by the decree.
II. The return of ,the notice shows that service was made upon plaintiff, and the district court did not, upon evidence other than the return of the notice, adjudge that service was made upon him. Evidence de hors the record tends to show that plaintiff was not served with notice. Upon the condition of the record before us, we assume that no service was in fact made. We shall not discuss the rules of the law and the facts applicable to the question of service and the validity of the decree, but will assume, for the purpose of the case, that the plaintiff is not cut off by the decree alone from redeeming under the mortgage and decree.
- III. In our opinion, the plaintiff, by his acquiescence in the decree and other conduct, is now estopped
Affirmed.