Glide

I concur in the judgment, for the reasons stated in the opinion of Mr. Justice Paterson.

This is a bill in equity, in the nature of a bill of review, brought to set aside a decree of foreclosure, and proceedings subsequently had thereunder, on the alleged ground of fraud. Defendants demurred to the complaint, that the same did not state facts sufficient to constitute a cause of action, or to entitle the plaintiff to relief, and specified many particulars wherein it was insufficient, among others, that as to many of the allegations the plaintiff ivas barred by lapse of time and laches. The demurrer was sustained, the plaintiff declined to amend, and judgment was entered for the defendants, from which plaintiff appeals.

This is a case where the rule that a pleading must be construed most strongly against the pleader clearly applies; but coming up as it does, on demurrer, all the allegations of fact therein, not inconsistent with other allegations in the same count, must be taken as true. The deductions to be drawn from them are for the court, and it does not follow that such as are drawn by the pleader are admitted to be correct.

From the allegations of the complaint it appears that on the fifteenth day of April, 1880, the defendants H. T. Holmes and William Gwynn…

I concur. It must be presumed, in the absence of objection to the contrary, that *490 plaintiff and his assignors had full notice of the pendency of the action, and of all the facts now relied on to show fraud and collusion. Having such notice, it was their duty to appear in the action to protect their rights. (Freeman on Judgments, sec. 181; Pomeroy’s Remedies and Remedial Rights, sec. 400; Robbins v. City of Chicago, 4 Wall. 567 ; Castle v. Noyes, 14 N. Y. 332 .) Furthermore, under the allegations of the complaint, plaintiff must be deemed to he an assignee without consideration after judgment of foreclosure and sale. He cannot, therefore, avail himself of this remedy. (Thompson v. Maxwell, 95 U. S. 397 ; 2 Smith’s Chancery Practice, 49.) For these reasons, I concur in the affirmance of the judgment,