Legal Opinion

Darlington v. Effey

Supreme Court of Iowa

Decided April 18, 1862PublishedCited by 3 opinions

Appeal from Scott District Court. Bill to foreclose a trust deed, purporting to be made by Theodore Effey. Service by publication: decree of fore-' closure without an appearance; execution — the land sold and a^ deed made to complainant, the purchaser, within the time prescribed by statute, P. O. Effey, claiming to be the heir of Theodore, asked to be made a party, settingup that the trust deed was a forgery, and that Theodore was dead.

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Appeal from Scott District Court. Bill to foreclose a trust deed, purporting to be made by Theodore Effey. Service by publication: decree of fore-' closure without an appearance; execution — the land sold and a^ deed made to complainant, the purchaser, within the time prescribed by statute, P. O. Effey, claiming to be the heir of Theodore, asked to be made a party, settingup that the trust deed was a forgery, and that Theodore was dead. The heir was made a party, and the default,'decree, execution and sale set aside. An answer and cross-bill were then filed, to which there was a replication,…

1Opinion of the Court

Wright J.

—By our statute it is declared that deeds of trust of real or personal property may be treated like mortgages, and foreclosed by action in tbe District Court. (Code 1851, § 2096; 1860, § 3673.) Treating tbis, tben, as a proceeding to foreclose a mortgage, it is proper, upon his motion, to make tbe administrator of tbe mortgagor a party respondent.

As a general rule it is well settled by tbe English practice, as well as that of most of tbe states, that tbe beir, in whom is tbe equity of redemption, is tbe only proper defendant in a bill of mere foreclosure. (3 Powell, 969; Story’s Eq.…

2Cases cited3 opinions

  1. Little v. SinnettSupreme Court of Iowa · 1858
  2. Wilkins v. WilkinsSupreme Court of Alabama · 1837
  3. Fletcher v. DanaIndiana Supreme Court · 1837

3Cited by3 opinions

  1. McClure v. DeeSupreme Court of Iowa · 1902
  2. Huston v. StringhamSupreme Court of Iowa · 1866
  3. Western Union Telegraph Co. v. Nye & Schneider Co.Nebraska Supreme Court · 1903

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