#### J. B. Fleming *et al.,*Appellants, v. A. L. Hager, Appellee.

Default: mortgage foreclosure: ORIGINAL notice: description . 1 of land and mortgage. In an action to foreclose a real estate mortgage it is not necessary that the original notice describe the land or refer to the hook and page where the mortgage is recorded. It is sufficient if in general terms it apprises defendant of the nature of the action.

*206Original Notice: error in immaterial statements: prejudice: 2 service. Inaccuracy in the statement of immaterial facts in an original notice respecting the nature of the action will not avoid the notice unless defendant is misled thereby and as a consequence fails to appear and defend, and this is true whether service is personal or by publication.

Original Notice: sufficiency: ppejudioial recitals. In an 3 action to foreclose a real estate mortgage the recitals of the original notice are held sufficient to apprise defendant in general terms of the cause of action and that errors in the notice regarding the description of the land and record of the mortgage, which it was not necessary to insert, could not have prejudiced the defendants.

*Appeal from Adair District Oourt.*— Hon. J. D. Gamble, Judge.

Saturday, October 10, 1903.

Action in equity to set aside a default decree. There was a demurrer to the petition, which was sustained. The facts appearing from the petition are that on and prior to December 7, 1886, Hannah Fleming was the owner of the ■■south half of the southwest quarter of section 38, township 76, range 30, Adair county. On the date mentioned she executed and delivered to the Sullivan Savings Institution, of New Hampshire, a mortgage on said lands to secure the payment of one note for $1,000, due in five years, with interest at eight per cent. Said mortgage was -duly filed for record in the office of the recorder of Adair ■county, and recorded in Book 45, page 458. Thereafter, and in November, 1888, said Hannah Fleming sold and conveyed said lands to Sarah E. Fleming. In the deed it is recited that the lands are “free and clear of all liens and incumbrances whatsoever, except a mortgage of ■$1,000.” Sarah E. Fleming died intestate in January,. 1890, leaving surviving her J. B. Fleming, her husband, rand Gertie, John, and Bertha Fleming, minor children of .herself and her said husband. J. B. Fleming was appointed *207administrator of her estate and guardian of said minor heirs. In October, 1894, said mortgage indebtedness not having been paid, foreclosure proceedngs were commenced in the Adair district court In that action J. B. Fleming, Oertie, John, and Bertha Fleming, and J. B. Fleming administrator, and J. B. Fleming guardian, are made parties defendant. In the foreclosure petition which is set forth at length in the petition in the present action it is alleged simply that whatever interest said defendants or any of them have in said lands the same is inferior to the lien of said mortgage and it is the prayer that their equity of redemption be cut off. In a paragraph of said petition it is alsr alleged that in 1892 the defendant J. B. Fleming in writing agreed to pay the interest on said mortgage indebtedness in consideration of an extension of time of payment. From the copy of such writing, which is set forth, it appears to have been the agreement that a failure to make payment of interest should result in therighttoproceed to foreclose themort-gage for the full amount of the debt, interest, etc. A failure to pay interest is then alleged, and judgment is demanded for $1,000, interest, and costs. Service of notice of said action was sought to be made by publication. The notice as published is set forth, and it appears addressed to J. B. Fleming, said minors, naming them, J. B. Fleming as administrator and as guardian. The notice is in the usual form, the statement made in the body thereof being as follows: “Asking judgment against you for the sum of $1,000 and interest,, and the foreclosure of a mortgage recorded in the office of the recorder of Adair county, Iowa, in Book 45 at page '58, on the south half of the southwest quarter of section 33, township 76, range 36, in said county.” No appearance was made to said action, and there was a default as-against J. B. Fleming personally and as administrator and guardian. A guardian *ad litem*was appointed for said minors, and an answer filed. No personal judgment was rendered, but foreclosure-with special execution was *208ordered as.prayed. It is further made to appear that execution sale was had, .followed by a sheriff’s deed of date February 19, 1896, to the defendant in this action; that this defendant has ever since been in possession of the lands thereunder, has paid the taxes thereon, etc. Hiis action is brought by said J. B. Fleming for himself and as guardian and administrator, and by said minor heirs, the petition being filed' in May, 1901, to have said decree and the sheriff’s deed set aside and canceled, and that they may be allowed to pay off said mortgage debt after deducting therefrom the value of the accrued rents and profits. The ruling on the demurrer to the petition having been made, plaintiffs elected to stand on their petition, and refused to plead over. Judgment was thereupon rendered dismissing the petition, and for costs. Plaintiffs appeal.

*—Affirmed.*

*Geo. D. Musmaker*and *D. W. Ohurch*for appellants.

*J. N. Haddock*and *Hinkson c& Brown*for appellee.

Bishop, O. J.

*209
      i. original scription of mortgage.
      *208Appellants 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*209able 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>. *210are 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 *211the 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 *212title 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.