ante.

498. But where the matter pleaded does not amount to a denial or to a confession and avoidance the defect may be reached by demurrer. The Davenport Gas-light and Coke Co. v. The City of Davenport, 15 Iowa, 6.

499. In a petition filed for the foreclosure of a mortgage by an assignee thereof, the instrument containing the contract of assignment under which he claims is not irrelevant or immaterial, and a motion to strike the same from the petition upon that ground should be overruled. Franklin v. Twogood, 18 Iowa, 515.

500. On a motion to strike out matter as redundant or irrelevant, it should be shown that the moving party will be aggrieved by suffering it to remain. (Rev., § 2946, Code of 1873, § 2719.) And while it is the duty of courts to expunge such matter, a duty which should be unhesitatingly exercised, for the sake of preserving unity and distinctness in the issues, a summary motion of this character should not be enter tained, when facts, and not the evidence of facts, are stated in such a manner as not to prejudice the opposite party. Childs v. Griswold, 15 Iowa, 438.

501. Paragraphs in an answer which contain matter constituting no defense to the action, may be stricken out on motion as redundant or irrelevant matter, under said section 2946. Evans v. Robbins, 29 Iowa, 472.

502. Surplusage. Allegations in a petition which do not form a basis for plaintiff's prayer for relief, and could be properly stricken therefrom as surplusage, cannot operate to vitiate the action. Goodpaster v. Porter and Courtney, 11 Iowa, 161.

503. Where an action of trespass was brought in the name of "the State of Iowa who sues for the use and benefit of the Des Moines Navigation Company," and the petition alleged that the trespass was committed on certain lands "belonging to and being the property in fee simple of the said State of Iowa," and where the petition was demurred to on the ground that it appeared from the petition, that the plaintiff had no interest in the subject-matter of the suit, and that the real party in interest should sue for a trespass, and not another for his use, which demurrer was overruled. Held, that the words "for the use and benefit of the Des Moines Navigation Company," were mere surplusage and

State of Ioua v. Butterworth, 2 Iowa, 158.

504. Under section 2966 of the Revision of 1860 (Code of 1873, § 2729), a party is not compelled to prove more than is needed for his defense, notwithstanding he has stated in his answer or reply more than is necessary. Arnold v. Arnold, 20 Iowa, 273.

505. When a party is sued in autre droit, and it appears from the allegations of the plaintiff that the defendant is liable in his own right, the words "executor, etc.," will be treated as surplusage, or as descriptio persona; but when it appears from the record that they were not so treated by the parties, or either of them, in the court below, it will not be so considered on the hearing of the same cause on appeal to the supreme court. Laverty v. Woodward, admr., 16 Iowa, 1.

XIV. PLEADING IN EQUITY CASES.

506. As to sufficiency of allegations in bill by creditors, to set aside as fraudulent a conveyance by a father to his son, see Harrison v. Kramer, 3 Iowa, 543; against one about to commit an injury. Dinwiddie v. Roberts, 1 G. Gr. 363; for specific performance, Garrettson v. Van Loon, 3 Ibid. 128.

507. Affirmative relief. It is erroneous to grant affirmative relief in a decree when no foundation therefor has been laid in the allegations of the petition. Knowles v. Rablin and Corwith, 20 Iowa, 101.

508. Where the complainant in chancery is entitled to any relief, under the case made in his bill, it should be granted pro tanto. Walker v. Ayres et al., 1 Iowa, 449. But a decree should not give more or greater relief than is claimed in the petition. Cooper v. Frederick, 4 G. Gr. 403.

509. While it is true as a general rule, that a defendant is not entitled to any affirmative relief, except upon the averments of a cross-petition; if a plaintiff in his petition prays for an account, and a balance is ultimately found in favor of the defendant, he is entitled to a decree for such balance against the plaintiff. McGregor v. McGregor, 21 Iowa, 441.

510. Under a prayer for general relief, the complainant may be entitled to a decree consistent with the case made by the allegations of the bill, but not to one including and covering matters not therein referred to, and as to which the

respondents have never properly had their day in court. Wilson v. Dorr, 15 Iowa, 489.

511. The damages sustained by the purchaser by reason of the vendor's failure to perform his contract to convey real estate, will not be assessed by the court in an action for specific performance, unless the petition is framed with a view to such relief. The prayer for general relief is not sufficient. Yost v. Devault, 9 Iowa, 61.

512. Under the prayer for general relief, such a decree will be entered as is warranted by the facts stated beyond that specifically asked. Simplot v. Simplot, 14 Iowa, 449.

513. But a court of equity cannot, under a general prayer, grant relief for which no proper basis has been laid in the allegations of the petition. Cassady v. Woodbury County, 13 Iowa,

113.

514. Proof will be confined to allegations. A complainant in chancery will not be permitted to make a case by his proof, and upon the hearing which is different from that presented in his bill. Singleton v. Scott et al., 11 Iowa, 589.

515. Bill to correct mistake in sheriff's deed. It is not necessary to allege in a bill to correct a mistake in a sheriff's deed, that the complainant, and those under whom he claims had no knowledge of the mistake, when the deeds constituting the chain of title from the sheriff to complainant were executed. Ehleringer v. Moriarty, 10 Iowa, 78.

516. by creditor to remove cloud of pretended conveyance. In a bill to remove the cloud of a pretended conveyance from real property, upon which the complainant claims a judgment lien, it is not necessary to aver the return of an execution nulla bona. Loving v. Pairo et al., 10 Iowa, 282.

517. by partner for balance due. As a general rule, a bill in equity by a partner for a balance due upon copartnership business, should show a final settlement of copartnership business, or ask the court to marshal the assets and make a final settlement between the members of the firm. Williamson v. Haycock et al., 11 Iowa, 40.

518. The failure to make such allegations will not be fatal to the bill on the final hearing, if the answer and evidence disclose a state of facts which necessarily raises the presumption that such settlement was made. Ibid.

Vol. 2 115

519.

for settlement of partnership business. Where a petition seeks a specific performance, and the settlement of a partnership business, it should set forth the amount of capital invested by each partner, the method of carrying on the business, and the leading facts and conditions upon which the partnership was formed, and under which plaintiff seeks to recover. Cooper et al. v. Frederick, 4 G. Gr. 403.

520. Allegations of fraud. In alleging a combination and collusion for the purpose of defrauding a party, it is not necessary to set out the minute facts which tend to show such combination and collusion. A general statement of the facts should be made. Singleton v. Scott et al., 11 Iowa, 589.

521. Where a bill charges actual fraud on the ground of deception, artifice and cirumvention, in terms judicially intelligible, it is sufficient. De Louis et al. v. Meek et al., 2 G. Gr 55.

522. A general allegation of fraud in a bill is sufficient, if so certainly and distinctly stated as to make the subject-matter of it clear. İbid.

523. of copartnership. The sufficiency of allegations of copartnership in a pleading in chancery, considered and discussed. Munson v. Sears et al., 12 Iowa, 172.

524. - by administrator to remove cloud on title. If a bill filed by an administrator to remove a cloud from the real estate of the decedent does not set up a full statement of the claims against the estate, with an account of the disposition made of the personalty, it should be dismissed. Gladson v. Whitney et al., 9 Iowa,

267.

525. The heirs of the decedent must be made parties to a bill by the administrator, to remove a cloud from the title of the real estate of decedent, and subject the same to the pay. ment of debts. Ibid.

526. to set aside a judgment. A petition to set aside a judgment is defective, unless it shows that the judgment is unjust and oppressive and there is a good defense. The door of equity is open only to such as have been or may be injured; and the injury sustained or apprehended should be clearly set forth in the petition. Pigott v. Addicks, 3 G. Gr. 427; Coon v. Jones, 10 Iowa, 131.

527. A bill to vacate a judgment of partition for fraud may be in the nature of a bill of re

556. Undenied allegation: decree pro confesso. When the defendant fails to answer or when the allegations of the petition are not denied, they are to be taken as confessed. Fer rier v. Buzick et al., 6 Iowa, 258; Compton v. Comer, 4 Ibid. 577; Atkins v. Faulkner, 11 Ibid. 326; Harrison v. Kramer, 3 Ibid. 543; Cook v. Woodbury County, 13 Ibid. 21; Greely v. Sample, 22 Ibid. 338.

557. But when the averments are indistinct and uncertain, the requisite certainty must be afforded by the proof. Atkins v. Faulkner, 11 Iowa, 326; Harrison v. Kramer, 3 Ibid. 543.

558. And a decrea of the court below, which may be considered as proper when regarded only in connection with the positive and distinct averments of the confessed bill, will be reversed when the evidence disclosed in the record shows that it was erroneous. Atkins v. Faulkner, 11 Iowa, 326; Cook v. Woodbury County, 13 Ibid. 21. 559. A petition in equity when undenied is taken as confessed, but the extent of such confessions is frequently measured by the exhibits attached. Cook et al. v. Woodbury County, 13

Iowa, 21.

560. Plea in bar. A plea in bar is not allowed in chancery if it depends upon facts which have transpired since the filing of the bill. Wright v. Meek et al., 3 G. Gr. 472.

561. Where a bill was filed to set aside a judgment in partition for fraud, and pendente lite the complainant transferred his interest to his children. Held, that such transfer could not be pleaded in bar to the proceeding. Ibid.

562. former adjudication. Where the equities of the second bill are materially different from the first, although the origin of both are the same, held, that the adjudication of the first is no bar to the second. Morris v. Stuart,

1 G. Gr. 375.

563. When the first will be a bar. See Campbell v. Ayres, 1 Iowa, 263. See, also, title JUDGMENT, sub-title, FORMER ADJUDICATION, ante. 564. Cross-bill. Under the Revision of 1860, no notice to the plaintiffs of the filing of an answer asking affirmative relief is necessary. When under the Code of 1851, a suit was brought for minors, by their mother, next friend and guardian," it was not necessary to serve upon such minors original notice of the filing of an answer in the nature of a cross-bill. Treiber et al. v. Shafer et al., 18 Iowa, 29.

565. When a mortgagee is made a party defendant in a foreclosure proceeding, and by his cross-bill alleges that his mortgage lien is prior to that of complainants, the complainant may join issue thereon by proper allegations in the replication or answer to the cross-bill, notwithstanding he has made no allegations of priority in the petition, and under an issue thus joined the complainant may introduce evidence to show that his mortgage was admitted to record prior to respondent's. Clarke v. Bancroft, Beaver & Co., 13 Iowa, 320.

PLEDGE.

1. Delivery and possession. In order to constitute a valid pledge, possession of the property must be delivered to the pledgee. But this possession may be according to the nature of the thing pledged, and need not always be an actual possession, but may be constructive only. Necan v. Roup, 8 Iowa, 207.

2. Levy of an execution upon property pledged. The right of the pledgee will prevail over the lien of an execution levied upon the property pledged by an officer with notice of the contract pledging the same. Reeves & Co. v. Seebern, sheriff, 16 Iowa, 234.

3. As collateral security. In the absence of any contract, controlling the rights of the parties, a pledgee holding a pledge as collateral security may, after the maturity of the debt secured, elect to pursue one of three remedies: 1. Proceed personally against the pledgor for his debt, without selling the pledge; 2. By bill in chancery for a judicial sale of the property; a foreclosure; 3. Sell the pledge without judicial proceedings, upon giving reasonable notice to the debtor to redeem. Robinson v. Hurley, 11 Iowa,

410.

4.

Where the pledgee executed to the pledgor a receipt for the pledge, in which it was stipulated that should the note for the collateral security of which the pledge was given, "not be promptly met at maturity," the pledgee reserves" the right and privilege of" disposing of the pledge" at private sale,” the proceeds to be applied to the satisfaction of the debt, and the balance, if any thereafter remain, to be paid to the pledgor; it was held, 1. That the agreement waived or changed the legal rights of the parties only in dispensing with notice to the pledgor