Fleming v. Hager

Bishop, O. J. [209] i. original scription of mortgage. [208] Appellants have, assigned errors predicated upon the ruling on the demurrer. In argument it Is their sole contention that the decree rendered must be held.void, and should be set aside, for that there was no notice of the action as by law required. The criticism of the notice published as alleged is' addressed to thé fact that the page of the record is given as 58, instead of 458, and in the description of the lands the range is given as 36, instead of 80. It is conceded that range 36 of townships does not extend through Adair county, but through the adjoining county of Oass on the west. • Section 2599 of the Code of 1873, in force at the time, provided that the original notice by which an action is to be commenced must state “in general terms the cause or causes thereof,” etc. What is meant by the language employed by the statute is that the defendant shall be advised with reason [209] able certainty of the nature of the claim made against him by plaintiff. Harkins v. Edwards, 1 Iowa, 296; Jordan v. Woodin, 93 Iowa, 453. In an action to foreclose a mortgage it is not necessary to describe the land covered by the mortgage. Van Sickles v. Town, 53 Iowa, 259; Lindsey v. DeLano, 78 Iowa, 350. Nor is there any reason, in our view, for making reference to the book and page where the record of the mortgage may be found. It will be observed that the notice here in question states in general terms that the action is for the foreclosure of a mortgage, and counsel for appellants concede, in effect, that the notice would have been sufficient had all reference to the record of the mortgage and the description of the land been omitted. We have then a notice which complies with the statute as to form and substance, and is therefore sufficient to confer jurisdiction upon the court, unless it shall be said that by reason of errors appearing in the statement of nonessential facts, the notice lost all force, and gave the court no authority to proceed to enter default or render a decree. Manifestly, it is not a case of no notice that we are called upon to consider. It cannot be said there is no notice unless a notice has not in fact been served, or, if one has been served, that the same does not comply with the essential requirements of the statute as to form and substance. We may assume also that a notice which fails to state correctly the character of the cause of action should be regarded as no notice at all, inasmuch as it would be insufficient to give the court jurisdiction to render judgment upon a cause of action not referred to. Thus notice of an action upon a promissory note would not warrant a judgment for damages upon' a cause of action sounding in tort, or authorize a decree quieting title to real estate. Nor is it quite accurate to say that the notice in question is a defective notice in the sense in which we>. [210] are accustomed to use that expression. It correctly names the forum and the parties. It correctly designates the place where the court is to be held,, and the time when the defendants are required to appear. It correctly states the subject-matter of the action, and, if served in connection with an action brought to foreclose a mortgage upon property in fact as therein described, and which mortgage was recorded as therein stated, it would undoubtedly be sufficient to confer jurisdiction to enter a default and decree. la immaterial preiudfce:^ ■service. The notice being otherwise sufficient, the simple question, therefore, is, must it be said that the inaccuracy in ■the statement of facts not necessary to be stated is sufficient to avoid the notice as a whole. We think the answer to this question must depend upon whether prejudice has resulted from the inaccuracy alleged, so far as that the defendants were thereby led away from entering their appearance in the action and making defense. This is the rule which obtains in all cases of defective notices, where the defect complained of is not of itself vital in character. And we see no reason why the principle there ■ applied is not applicable to cases such as the one before us. Such, clearly, is the thought upon which the decision in Lindsey v. DeLano, supra, is based. That also was an action brought to set aside a default foreclosure decree upon the ground that in the original notice the land covered by the ■mortgage was erroneously described. In the course of 'the opinion it is said: “It is claimed that this decree is void * * * because the original notice * * * described the land in controversy as in township 92, instead ■of township 91, and as being in Stanton township, when it was in fact situated in another civil township. The objection is without merit. The land is otherwise sufficiently identified. It is described as the land known as the * George Gray land,’ and upon which Lindsey had a lien. It was not required that the land should be described in [211] the notice. There is no pretense that Lindsey was misled by this notice. He had but one mortgage made by George Gray, and knew the location of the land. He was advised by the notice that Rogers claimed the superior lien.” Counsel for appellants seem to think there should be a distinction drawn between cases where service of the notice is had by publication and those in which the service is personal, and this is undoubtedly true as having respect to some matters. Thus a party upon whom service is personally made may be held in reason to know that he is the person intended to be sued, even though there is an inaccuracy in the spelling of his name, or in the giving of his initials; whereas the contrary might be true if the notice was a published one. This is the holding in Fanning v. Krapfl, 61 Iowa, 419. But there is no good reason for saying that, in respect of the character or nature of the action stated, there should be any distinction drawn on account of the method which has obtained in making service, and no case has been called to our attention which so holds. Counsel for appellant cite and rely upon Frazier v. Steenrod, 11owa, 340. We do not think the case is in point. There a guardian made application to the court for leave to sell certain described real estate belonging to his ward. In the notice of the application served upon his ward he described real estate other than that described in the application. It was properly held that the notice was wholly insufficient to authorize a sale of lands not described therein. 3. original ciency: preju-didal re-citáis. We may now turn to the record before us, and therefrom ascertain if the facts and circumstances described by the petition are sufficient to make out a case of prejudice. It will be observed that plaintiffs came to their title in the lands through the death and intestacy of the wife and mother. The mortgage was then resting upon such lands, and the same was properly a matter of record. Not only did they take [212] title subject to the lien of the mortgage, but they must be held to a knowledge of its terms and conditions. Moreover, it is affirmatively alleged by them that after they became possessed of the title to the lands the plaintiff J. B. Fleming, acting we may presume on his own behalf and in the interests of the estate of his wife and of his wards, went to the mortgagee, and procured an extension of timé, binding himself personally to pay the interest on the mortgage indebtedness in consideration of such extension. Plaintiffs knew, of course, that the interest was not paid, and that foreclosure proceedings would probably follow as a result thereof. Now, the notice apprised them that they were being sued by the party holding the mortgage on their lands on account of a mortgage indebtedness identical in amount with that for which their lands were holden, and that a decree of foreclosure was prayed for. In the notice the lands described are said to be in Adair county, and the suit was brought in Adair county; and, had such notice actually come into the hands of plaintiffs, they must have known that the statement of the range number as being 36 was an error. No appearance was made, and not only is this true, but for a period of over six years they gave no attention whatever to the matter of the indebtedness to which they held subject by making payments of any portion of the principal or interest. They gave no attention to the land itself by asserting a right to possession thereof or by paying taxes thereon. In the absence of any showing to the contrary, we think it not unreasonable to conclude that plaintiffs were satisfied to let the lands be taken to pay the indebtedness, and that, instead of their being misled by the errors in the notice, the present action is the result of, afterthought, inspired by a probable increase in value of the lands and by improvements which have been made thereon. It follows from what we have said that the decree appealed from was warranted, and it is AEmtMED.