1. Scire defense. There can be no reasonable question as the correctness of the general legal proposition, in substance as stated by the counsel for appellant in their argument, that matter which might have been pleaded to an original action, cannot be made available as a defense to a suit or process of revivor upon a judgment obtained in such action. The first and main inquiry in this case is, whether the defense, as alleged, might have been pleaded to the original action?
*334As a general rule, certainly, a defense, in order to be pleaded, must exist at" the time of the action or trial. According to the statements of the answer, the defendant was bound to pay or deliver the notes and mortgage, or the substituted security, to wit: the judgment before or at least concurrently with his right to demand the reconveyance of the land sold under the decree for temporary alimony. Could he successfully defend a suit for the amount he had agreed to pay at a specified time, by showing that the plaintiff had agreed, as a part consideration for his promise, to reconvey certain land at an indefinite time? But to illustrate this idea more clearly: Suppose one person shall arrange for borrowing a certain sum of money from another; and to secure its repayment he is to give certain notes secured by mortgage; but when he goes to get the money, it is agreed to substitute a judgment by confession, as a security instead of the notes and mortgage; and thereupon, the party makes his confession of judgment, which is duly entered up, and then receives only a part' of the sum agreed, and the lenders promise to hand him the balance on a subsequent day, or as desired or demanded; but in fact it is never handed him. Now,, will it be seriously contended, that in a subsequent proceeding by scire facias, to revive such judgment, defendant cannot show, by way of defense to such action, that the plaintiff never performed his agreement to hand him the balance of the money, and therefore the judgment ought not to be revived ? Could the plaintiff in such case, insist that the judgment was res adjudicata upon that matter, that it should have been pleaded as a defense to the original action, and cannot therefore be made available as a defense to a scire facias ?
It appears to us that there can be no question as to the right of the defendant t<? avail himself of such fasts in *335defense to a scire facias, and that he may do so as against the original plaintiff or his assignee, and certainly against any assignee with notice of the facts. Such notice is distinctly alleged in this case, and the inquiry whether the defense is so connected with and arises out of the judgment itself, as to enable tbe defendant to use it against an' assignee without notice is entirely obviated. Sed vide Burtis v. Cook and Sargent et al., 16 Iowa, 194; Isset and Brewster v. Lucas et al., 17 Id., 507. There is no difference in principle between the case at bar and tbe one put as illustration.
Again, under our statute, a defendant may set forth in his answer as many causes of defense, whether legal or equitable, as he may have. Rev., § 2880. This right of a defendant to avail himself of an equitable defense, is not limited to any particular kind of action, but is general. If tbe plaintiff in tbe judgment has, as averred in the answer, failed to perform that which was tbe consideration whereon the judgment was based, it would certainly be inequitable to enforce it, and upon this ground the answer might well be held sufficient. In either view of tbe case there was no error in the judgment of the District Court, and tbe same is
Affirmed.