Moberly v. Alexander
Supreme Court of Iowa
Appeal from Warren District Court. The record presents the following state of case: In April, 1857, the parties both lived in the State of Indiana. The plaintiff owned 120 acres of land in Warren county, this State. He sold the same to defendant for $800, one-half cash down, the balance by note, payable the 25th of December, 1857, secured by mortgage on the land sold. In July, 1860, this suit was brought to foreclose said mortgage.
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Appeal from Warren District Court. The record presents the following state of case: In April, 1857, the parties both lived in the State of Indiana. The plaintiff owned 120 acres of land in Warren county, this State. He sold the same to defendant for $800, one-half cash down, the balance by note, payable the 25th of December, 1857, secured by mortgage on the land sold. In July, 1860, this suit was brought to foreclose said mortgage. The defendant sets up a counterclaim of $800 damages, resulting to him from the fraudulent representations of the plaintiff as to the location and quality of the…
1Opinion of the CourtLowe, J.
1. set-oef: foreciosurá
The first irregularity insisted upon is in allowing a counterclaim of damages for fraud and deceit, to be set up in a proceeding to foreclose a mortgage. The objection is not thought to be well taken. A foreclosure proceeding is equitable to be sure, in its nature, yet not exclusively or purely so. It is triable before a jury on oral testimony, and comes here to be reviewed upon errors assigned, and not to be tried upon its merits. Being a demand for money, we know no reason, under the liberal provisions of the Code, why a defendant may not interpose any set-off or…
2Cases cited1 opinion
- Hahn v. CummingsSupreme Court of Iowa · 1856
3Cited by7 opinions
- Grabenheimer v. BlumTexas Supreme Court · 1885
- Stoke v. ConverseSupreme Court of Iowa · 1911
- Shuttlefield v. NeilSupreme Court of Iowa · 1914
- Kaup v. SchinstockNebraska Supreme Court · 1910
- Walsh v. SissonMichigan Supreme Court · 1882
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