made which were not indorsed on the notes, and pleading a settlement in full and satisfaction of the mortgage.

On the twenty-seventh day of October, 1876, the court adjudged that the plaintiffs have judgment for $9,664.50, and a decree of foreclosure as prayed. The defendants then asked until the next day to file an amendment to their answer' and cross-bill, and offered to file an amendment setting up the contract set forth in their original answer in this case. Leave to file this amendment was asked after the announcing of judgment by the court, but before the entry of judgment, and was refused on the ground that the offer came too late. A formal decree of foreclosure was then entered up. Under this foreclosure the land in controversy was, on the twentythird day of December, 1876, sold to Frederick, Paul, John and William Mally. The certificate of purchase was assigned to Norman Willett, and to him a sheriff's deed was executed February 5, 1877. February 6, 1878, Willett conveyed to Frederick, Paul and Franz Mally. April 5, 1878, Franz Mally conveyed his interest in the premises to Louisa Schlauker.

Under the title derived as above the plaintiffs claim the immediate possession of the property. The defendants insist that the plaintiffs are not entitled to the immediate possession of the property, because of the provisions of the written contracts set out in the answer, and the amendment thereto. The plaintiffs in the foreclosure suit prayed for an unconditional foreclosure of the mortgage. The decree rendered is an absolute one, accompanied with the usual incidents, and to be followed by the usual consequences of an absolute foreclosure. It authorizes a sale, to be followed, in the absence of redemption, by a sheriff's deed; entitling the purchaser to immediate possession. Such a sale has been made, and such a deed has been executed.

If any facts existed at the time of the foreclosure, under which the plaintiffs would not have been entitled to an absolute decree of foreclosure, those facts constituted pro tanto a defence to the plaintiffs' action, and should have been pleaded as such in the foreclosure proceeding. These written contracts constituted such partial defence, or they did not. If they constituted such partial defence they should have been set up and relied upon in the foreclosure proceeding, and cannot be made available now. Hackworth v. Zollars, 30 Iowa, 433; Dewey v. Peck, 33 Iowa, 242; Lawrence Savings Bank v. Stevens, 46 Iowa, 429; Collins v. Chantland, 46 Iowa, 242.

If these contracts did not then evidence a condition of things which would have prevented an absolute foreclosure they cannot now be set up to deprive the plaintiffs of the absolute foreclosure which they have obtained.

case.

The defendant did offer to set up the contract set out in the original petition as a defence in the foreclosure proceeding, but not until after the court had announced its judgment in the The court refused to allow the amendment, as coming too late. It was clearly within the judicial discretion of the court to refuse to allow the amendment under the circumstances disclosed; and, if it were not, the decision of the court, not having been appealed from, is conclusive upon the defendants. In any view of the case the written agreements do not now constitute a defence to the plaintiffs' action. Affirmed.

LEROY D. RANDALL, Appellee, vs. C. FOCKLER and others,

Appellants.

Filed December 11, 1879.

Motion for continuance must be made on the second day of the term, or, if made subsequently, affidavit must show excuse for the delay. ~[Ed.

Appeal from Dubuque circuit court.

Action on a promissory note. The defendants pleaded that the note was not the property of the plaintiff, but that it belonged to O. B. North & Co., of New Haven, Connecticut. Judgment was rendered for the plaintiff and defendants appeal.

J. C. Longueville and Shiras, Van Duzee & Henderson, for appellants.

Griffith & Knight, for appellee.

SEEVERS, J. The only error insisted on by counsel for the appellants is that the court erred in overruling a motion for a continuance. The answer was filed on the twenty-sixth day of March, 1879, and that was the second day of the term. The motion was filed on the twenty-ninth day of March. The statute provides that motions for a continuance must be filed on the second day of the term, if it is then certain it will have to be made before the trial. Code, § 2752. The absent witnesses resided in New Haven, Connecticut, and defendants did not have knowledge of any other persons by whom the defence could be established. This they must

have known on the second day of the term, and that they could not obtain the testimony of said witnesses at the trial, or if they did not have such knowledge the affidavit should have contained an excuse for the delay in filing it. This the statute requires. Code, § 2752.

Affirmed.

MARGARET LEIBEN, Appellant, vs. SARAH FRANKS, Appellee. Filed December 12, 1879.

In an action by a judgment creditor to reform and correct a mistake in a description in a deed, so as to subject the land intended to be conveyed to the grantee to the lien of their judgment, evidence held sufficient as to mistake on part of the husband making the conveyance, but insufficient as to the wife.-[ED.

Appeal from Jones district court.

This is an action in equity, the object of which is to reform and correct the description in a deed, so as to subject the land intended to be conveyed to the payment of a judgment against the grantee.

The conveyance was made in 1868, by E. M. Franks, and Sarah Franks, his wife, to S. G. Franks, their son. In 1878 S. G. Franks was indebted to the First National Bank of Wyoming, and the plaintiff was his surety to said bank for the payment of said indebtedness. The bank obtained judgment for said debt, and the plaintiff, as surety for said Franks, paid the judgment, and claims that she was thereby subrogated to all the rights of the bank, among which was a lien upon the real estate of said Franks. E. M. Franks died in 1878, and this action was brought against Sarah Franks, his widow, and his heirs and administrators, and certain judgment creditors, claiming that by mistake a certain tract of land was included in said deed which E. M. Franks did not own at the time, instead of 80 acres which he did own, and, which he and his said wife intended to convey. Sarah Franks claims that she is entitled to dower in said lands, as the widow of E. M. Franks, and denies the allegations of the petition. Upon a trial there was a decree for the plaintiff, correcting the deed as prayed excepting so far as relates to the claim of Sarah Franks for dower, and finding that she was entitled to dower to the extent in value of one-third of the land. Plaintiff appeals.

Merrell & Howatt and A. R. Colton, for appellants.
E. Keeler and J. M. Preston, for appellee.

ROTHROCK, J. That the evidence was sufficient to reform and correct the deed upon the ground of mistake, so far as the rights of the heirs of E. M. Franks or the administrators of his estate are involved, can admit of no question. It clearly appears from the evidence that E. M. Franks intended to convey the 80 acres in controversy, but that by a mistake of the scrivener who drew the deed another tract was inserted. But it was also incumbent upon the plaintiff to establish by evidence that Sarah Franks, when she executed the deed, and thereby released her dower, intended to release her right to this specific land. We think the court below correctly found that there was a failure of proof upon this question. It is true the declarations of E. M. Franks are explicit as to the land intended to be conveyed; but it is not shown that any of these declarations were made in the presence of his wife, and they therefore are not competent evidence against her.

The notary public who went to the residence of E. M. Franks and prepared the deed and took the acknowledgment, testified that he did not read over the entire contents of the deed to the defendant, but that he told her it was "G.'s" farm, meaning thereby that it was the farm known as S. G. Franks' farm, and the one occupied by him. There were some three or four other tracts conveyed by the same deed; that the deed was written out at E. M. Franks' house, immediately after he (Franks) gave the directions as the land to be conveyed. Now, if Sarah Franks was present when these directions were given, it might fairly be said that she understood and intended to join in a conveyance of this land; but upon cross-examination the notary stated: "I do not recollect any conversation with Mrs. Franks at the time other than I have testified to. I don't know whether Mrs. Franks was in the room or not when we were talking about the execution of the deed at any time.”

It may further be said that if it were shown that "G.'s" farm, as understood by the defendant, included the 80 acres in question, this might be sufficient to authorize the reformation of the deed as to her. But this does not appear. It does not even appear that she understood what "G.'s" farm meant. Her son, S. G. Franks, was not then in possession of the land. The mistake should be shown to be her mistake, as well as that of her husband, by clear and satisfactory evidence.

Affirmed.

DAVID J. SEELEY, Appellee, vs. RILEY PERRY, Appellant. Filed December 12, 1879.

Newly discovered evidence held material, and, no lack of diligence appearing, new trial ordered.-[ED.

Appeal from Jackson district court.

Action in replevin to recover a mare transferred by plaintiff to defendant under the form of a sale, but which the plaintiff alleges was merely a sham sale. Trial by jury. Verdict and judgment for plaintiff. Defendant appeals. F. M. Fort and Ellis & Spence, for appellant.

ADAMS, J. The defendant moved for a new trial upon the ground of newly discovered evidence. The evidence consisted of an admission made by the plaintiff to one McMeans that he had sold the mare to the defendant. The affidavit filed in support of the motion shows that after the transfer of the mare to the defendant she was taken sick; that the plaintiff met McMeans upon the street, and McMeans, supposing that the plaintiff still owned the mare, said to him, "You came near losing your mare last night." The plaintiff said, "No, I sold her to Riley, (meaning the defendant;) I told him not to feed her corn, and if he has been damn fool enough to give her corn and kill her it is his own loss, not mine." This clearly shows that it was the plaintiff's intention to claim, at that time, especially if the mare died, that the sale was a valid one. We think that the evidence was material.

The affidavit shows that there was no lack of diligence on the part of the defendant to discover the evidence sooner, and in our opinion a new trial should have been granted. Several other errors are assigned, but as the questions presented will not probably arise again we omit to consider them.

Reversed.

THE STATE OF IOWA, Appellee, vs. HENRY DURSTON,

Appellant.

Filed December 12, 1879.

Where the record in a criminal cause contains none of the testimony, the question whether the punishment imposed is excessive cannot be reviewed.-[ED.

Appeal from Buchanan district court.