Gargan v. Grimes

Eothrock, J. i mortgage nNorityoi?1 liens. I. Postlewait, the mortgagor, was not made a party defendant. The decree finds that he died shortly after • he conveyed the real estate by assignment to GarreE. No personal judgment was sought against any one_ The petition prayed that an account be taken of the amounts due on the several mortages, and their priorities ascertained, and that special execution issue for the [182] sale of the real estate to pay the several incumbrances in the order of their priority. The date of the incumbrance created by the mortgage to Moir & Bro. was stated in the petition to be February 23, 1859. Upon a foreclosure of this mortgage and a sale of the real estate no redemption could be made. Maloney v. Fortune, 14 Iowa, 417. Counsel for appellant urges that, being in default, he is not concluded by the decree directing the sale without redemption, because the petition was not - for the foreclosure of the mortgage given to Moir & Bro. In other words, it is claimed G-argan was the plaintiff and Grimes was notified of his petition to foreclose his mortgage, and any decree not following such petition or granting relief to any other party was of no force to bind him. Grimes was notified of just what the petition contained, and is bound by any decree based upon the facts averred in the petition. He was also notified of the relief sought. It was that an account be taken of all these liens, and the whole title of the property be sold to pay them in the order of their priority. It was not the ordinary petition praying a foreclosure of plaintiff’s mortgage and a sale in satisfaction thereof and making other incumbrancers parties by a mere general averment. It was more than this. He had notice of the claim made that the first mortgage was executed in 1859, and was required to take notice of the legal right of the holder thereof to have the property sold without redemption. The decree follows the petition and we think concludes the appellant. II. No motion was made to correct the decree in the court below. It is urged that no appeal will lie without such motion having been first made. As we hold that there must be an affirmance upon the merits., we need not pass upon that question. Affirmed.