Rock v. Huff ( 1905 )

Ames, O.

This is an appeal from a decree of mortgage foreclosure upon a tract of land in Wheeler county. It seems that some time after the mortgage was executed and made of record in 1888, the mortgagor abandoned the property, and the defendant Henry Huff went into possession of it. The mortgage debt matured in September, 1893, but the time of payment was extended by agreement, also made of record, until September 1, 1898, so that an action for its foreclosure would not have been barred by the statute of limitations until 1908. This action was begun in 1902, both the mortgagor and Huff being made defendants thereto. The former made default, but Huff, who was charged by the petition with having or claiming to have some interest in the mortgaged premises, the exact nature and extent of which were unknown to the plaintiff, filed an answer consisting of general denial, and the following paragraph: “Defendant, further answering plaintiff’s petition, alleges that this defendant has had and maintained exclusive, open and adverse possession of the land involved in this action for more than ten years before the commencement of this action, and the said mortgagee or his assigns have not made any requests or demand for any payment on the mortgage set out in plaintiff’s petition or any part thereof.” As a response to the petition the general denial is, in substance, a disclaimer, and the quoted paragraph, which is pleaded as a second defense, is immaterial.

There was a trial, and an ordinary decree of foreclosure and sale barring all the defendants, but there was otherwise no judgment against Huff or demand for any, but he has brought the case to this court by appeal. It not appearing by his answer that he has any interest in the subject matter of the suit, he has, of course, no right to have the proceedings reviewed, and it is recommended that the judgment of the district court be affirmed.

Letton and Oldham, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be

Affirmed.