
    Circuit Court for Clackamas County,
    October Term, 1871.
    W. W. HARPER by NORTON (Guardian of W. W. Harper,) v. A. M. HARDING et al.
    
    Setting Aside a Decree. — Jurisdiction.—As a general rule, a decree of a court haying jurisdiction cannot be attacked collaterally, and it is not a sufficient showing of a want of jurisdiction to allege that the defendant was insane at the time of the trial.
    Bill oj? .Review. — -To warrant a review of a decree by an original suit, except for error appearing on the record, a reason must be shown why llie facts now presented were not presented and determined on the former trial.
    Thk plaintiff, W. W. Harper, who it is averred is insane, sues by guardian, to set aside certain deeds and to recover possession of the premises in controversy.
    „ The plaintiff charges that on June 2, 1860, said Harper executed a mortgage while said Harper w'as insane; that while said Harper was still insane, the said mortgage was foreclosed, and the premises sold to the mortgagee, A. M. Harding, in April, 1864, wdio afterwards conveyed to the defendants, King and Hawley. He also charges that the mortgage was without consideration.
    The complaint then proceeds as follows: ‘ ‘ For further and separate cause of suit, the plaintiff avers that on the eighth day of August, 1864, the said King and Hawley fraudulently and without consideration, obtained a deed for the above described premises from W. W. Harper. That tbe said Harper was insane at tbe time of tbe execution of tbe deed. Tbat said defendants now hold said premises-adversely to tbe plaintiff under said deeds.”
    Tbe defendants demurred, on tbe ground tbat two causes of suit are improperly united, and are not separately stated, and tbat tbe complaint does not state facts sufficient to constitute a cause of suit.
    During tbe argument, tbe words “for further and separate cause of suit” were stricken out by consent.
    
      H. F. Forbs, for tbe plaintiff.
    
      Johnson & McCown, for tbe defendants.
   Bv the Court.

(Upton, J.)

I think tbe complaint is insufficient. In order to maintain this suit tbe plaintiff must show tbat tbe defendants are not entitled to tbe premises, either under tbe foreclosure or under tbe deed executed subsequently.

If tbe allegation is true, tbat Mr. Harper was insane when be executed tbe mortgage, that is a fact tbat might have been plead and proved in tbe foreclosure suit. As a géneral rule a judgment or decree of a court having jurisdiction cannot be attacked collaterally; and when a decree is attacked for want of jurisdiction, it is not a sufficient showing of such lack, to declare tbat tbe defendant was insane at tbe time. It does not appear by this complaint but tbat Harper was duly served and appeared by guardian. Nor is any reason shown why bis alleged insanity was not plead in tbat suit. In fact there is nothing set forth in this complaint to show tbat tbe same allegations tbat are made in this complaint were not set up and passed upon in tbe foreclosure suit. For aught tbat appears, tbe court in which tbe mortgage was foreclosed, may have beard and determined tbe matters which tbe plaintiff now seeks to present, and it does appear tbat tbe court then pronounced a decree upon tbe subject matter involved in this suit; tbat is, tbe due execution of tbe mortgage. A plea of insanity may have been negatived;' or tbe present plaintiff may, have been represented by guardian and may have failed to set up tbe insanity. The presumption being in favor of the judgments and decrees of a court of record, in the absence of any allegations on the subject, it will be presumed that the court having jurisdiction of the subject and of the person, proceeded regularly and decided correctly. The decree of foreclosure cannot be attacked collaterally, and the facts stated are not sufficient to authorize a review of the decree of foreclosure.

The demurrer should be sustained.  