Maley v. Mally

Day, J. i uesadjutaSenotde" pleaded. — The stipulation of the parties, and the evidence introduced, establish the following facts: About the 22d day °í October, 1870, the defendants were in the possession of the premises described in the petition, an(j a£ jqie same time there was a mortgage on the same, given to Franz Mally, to secure the sum of about $8,000, with interest. On the 22d day of October, 1870, Franz Mally executed the written agreement set out in the original answer of the defendants. On the 17th day of July, 1871, Franz Mally executed an assignment of said mortgage, a copy of which is attached to the amendment to the defendants’ answer, to his sons Frederick, Paul, John and William. On the 29th of Ma}1-, 1872, Frederick, Paul, John and William Mally commenced an action to foreclose said mortgage, making defendants thereto one A. Bradish, and these defendants. The defendants answered alleging fraud in the procurement of the notes and mortgage, that payments had been made which were not indorsed on the notes, and pleading a settlement in full and satisfaction of the mortgage. On the 27th day of October, 1876, the court adjudged that the plaintiffs have judgment for $9,664.50, and a decree of foreclosure as prayed. The defendants then asked until the next day to file an amendment to their answer and cross-bill, and offered to file an amendment setting up the contract set forth in their original answer in the case. Leave to file this amendment was asked after the announcing of judgment by the court, but before the entry of judgment, and was refused on the ground that the offer came too late. A formal decree of foreclosure was then entered up. Under this foreclosure the land in controversy was, on the 23d day of December, 1876, sold to Frederick, Paul, John and William Mally. The certificate of purchase was assigned to [659] Norman "Willett, and to him á sheriff’s deed was executed February 5th, 1877. 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 [660] cumstances disclosed; and if it were not, the decision of the court, not having been appealed from, is conclusive upon the defendants. In any view of the case the written agreements do not now constitute a defense to the plaintiffs’ action. Affirmed.