nish the support required.

Tuttle v. Burgett's Adm'r, 53 0. St. 498 (42 N. E. Rep. 427; 53 Am. St. Rep. 649; 30 L. R. A. 214).

Sec. 578. Foreclosure proceedings-General principles-Practice. A mortgage may be reformed and foreclosed in the same proceedings. Hendon v. Morris, 110 Ala. 106 (20 So. Rep. 27). In an action to foreclose a mortgage the plaintiff has the burden of proving its execution. Wagener v. Kirven, 47 S. C. 347 (25 S. E. Rep. 130). Where the absence of a note secured by a mortgage is accounted for and no personal judgment is asked the mortgage may be foreclosed without the production of the note. Vaughn v. Tate,

Tenn. (36 S. W. Rep. 748). In an action to foreclose a mortgage of a corporation the production of a note and mortgage executed in the name of the corporation under its seal, attested by the signatures of its president and secretary makes a prima facie case. Ashley Wire Co. v. Illinois Steel Co., 164 Ill. 149 (45 N. E. Rep. 410). A mortgagee who has merely deposited his note and mortgage with another as collateral security may maintain an action in his own name to foreclose the mortgage, if his pledgee makes no objection. Consolidated Nat. Bank v. Hayes, 112 Cal. 75 (44 Pac. Rep. 469). Foreclosure of a mortgage given by a married woman and her husband on her separate estate may be had on a cross bill in an action brought by her to cancel the same, without making the husband a party. Summers v. Sprigg, Ky. (35 S. W. Rep. 1033). Title acquired under the foreclosure of a mortgage relates back to the date of the mortgage. Logan v. Stieff, 36 Fla. 473 (18 So. Rep. 762). Where the validity of the note and mortgage is attacked because of the alleged insanity of one of the makers thereof, and because of the duress of the other maker, either party is entitled to a jury trial as a matter of right. Myers v. Knabe, 4 Kan. App. 484 (46 Pac. Rep. 472). Where property is subject to two mortgages held by the same person, his foreclosure of the junior mortgage and a purchase of the property thereunder extinguishes the first mortgage. McDonald v. Magirl, 97 Ia. 677 (66 N. W. Rep. 904). Where one holding two mortgages on the same property to secure two separate debts

institutes a suit to foreclose the first mortgage and after obtaining a judgment therein, but before the sale of any property consolidates this action with another to foreclose the second mortgage, it is held that the lien of the second mortgage is not lost by reason of the first suit; but in such a case the plaintiff's allowance for costs should be for one suit only. Thompson v. Skeen, 14 Utah 209 (46 Pac. Rep. 1103). A purchaser of property bound by a decree of foreclosure holds subject thereto and is not entitled to personal notice of sale and confirmation subsequently made in the enforcement of such decree. Link v. Connell, 48 Neb. 574 (67 N. W. Rep. 475). Construing How. Ann. Mich. Stat., § 6703, it is held that the bringing of a suit at law, while an action to foreclose is pending, without first obtaining leave of court, is a mere irregularity which will not be enjoined unless substantial rights are affected. Steele v. Grove, 109 Mich. 647 (67 N. W. Rep. 963). Where the mortgage note provides for seven per cent. interest for the first two years and ten per cent. thereafter, upon foreclosure before the expiration of two years, the judgment should allow interest at seven per cent. Shelden v. Barlow, 108 Mich. 375 (66 N. W. Rep. 338). The costs of foreclosure proceedings recovered by the plaintiff are a lien upon the lands and as such must be discharged by the moneys realized from the sale. Connecticut Mut. L. Ins. Co. v. Hobbs, 14 Ind. App. 681 (43 N. E. Rep. 452). Pleading payment and the statute of limitations in an equitable action to foreclose a mortgage does not entitle one to a jury trial. Leach v. Kundson, 97 Ia. 643 (66 N. W. Rep. 913). Under Mass. Pub. Stat., ch. 181, a court of equity has no jurisdiction to decree a foreclosure and sale under a mortgage unless it contains a power of sale. Hallowell v. Ames, 165 Mass. 123 (42 N. E. Rep. 558). Where, for any cause, a note, mortgage or other written instrument does not set forth the true date of its execution, the actual time of its execution may be alleged and proven on the trial, and the fact that the note and mortgage were post dated does not affect their validity. McFall v. Murray, 4 Kan. App. 554 (45 Pac. Rep. 1100). For construction of the statutory provisions of Kansas concerning the jurisdiction of suits to foreclose a mort

gage and the issuing and service of summons in such actions, see Sparks v. Beyer, 5 Kan. App. 721 (46 Pac. Rep. 980). Reference to a master-practice in Florida. Trower v. Bernard, 37 Fla. 226 (20 So. Rep. 241). S. C. Rev. Stat. 1893, §§ 847, 849, applied-power of master to order reference and to take testimony. Bank of Camden v. Thompson, 46 S. C. 499 (24 S. E. Rep. 332).

Sec. 579. Complaint in foreclosure proceedings. A complaint to enforce the lien of a mortgage against a dower interest for life in the lands, subsequently acquired by the wife, must aver the necessary facts from which the amount chargeable against such interest can be computed. Fowle v. House, 29 Ore. 114 (44 Pac. Rep. 692). A complaint to foreclose a mortgage which alleges that it was given to secure a note given by Joel S. Josselyn and Georgia C. Josselyn, a copy of which is purported to be set out, sufficiently identifies a note signed by J. S. Josselyn and G. C. Josselyn. Humboldt Sav. & L. Soc. v. Burnham, 111 Cal. 343 (43 Pac. Rep. 971). The complaint must allege the non-payment of the mortgage debt, and it is not sufficient to allege that a certain sum is "now due and owing" to the plaintiff. Ryan v. Holliday, 110 Cal. 335 (42 Pac. Rep. 891). A complaint which is sufficient for the foreclosure of a mortgage will withstand demurrer although the action purport to be one to remove a cloud from title. Damon v. Leque, 14 Wash. 253 (44 Pac. Rep. 261). A complaint to cancel the discharge of a mortgage and revive it in the place of another mortgage executed in its stead, to enforce an equitable assignment thereof, establish its priority over other liens and for its foreclosure is not multifarious. Densmore v. Savage, 110 Mich. 27 (67 N. W. Rep. 1103.)

Sec. 580.

Parties to foreclosure proceedings. In an action by an assignor of a mortgage to foreclose as to certain interest coupons which he has taken up as guarantor, the holder of the principal obligation is a necessary party Wash. Code Proc., § 143, applied. Bacon v. O'Keefe, 13 Wash. St. 655 (43 Pac. Rep. 886). The principal debtor may be made a party defendant to a suit by his creditors to foreclose

a mortgage held as collateral security for the principal debt; and when so joined, a court of equity may proceed to a complete adjudication of all the matters between the parties arising out of the transactions alleged in the complaint. First Nit. Bank v. Lambert, 63 Minn. 263 (65 N. W. Rep. 451). In an action to foreclose brought by the holder of one of several notes secured by the same mortgage the holders of the other notes are not necessary parties where the effect of such foreclosure is to leave the mortgage still in force as to such

Boyer v. Chandler, 160 Ill. 394 (43 N. E. Rep. 803; 32 L. R. A. 113). An insane ward under guardianship is neither a proper nor necessary party to an action to foreclose a mortgage on his land. Jones v. Crowell, 143 Ind. 218 (42 N. E. Rep. 612). How. Ann. Mich. Stat., § 6704, permitting the making of one other than the mortgagor a party to the foreclosure of a mortgage who is liable for the mortgage debt, is not mandatory. Steele v. Grove, 109 Mich. 647 (67 N. W. Rep. 963). In Alabama the heirs of a deceased mortgagee and his personal representatives are necessary parties. Wells v. American Mortg. Co., 109 Ala. 430 (20 So. Rep. 136). Where a mortgagor is deceased, his widow who joined him in the execution of the mortgage and those who claim as devisees under him are necessary parties. Chadbourn v. Johnson, 119 N. C. 282 (25 S. E. Rep. 705). The personal representative of a deceased mortgagor is not a necessary party. Harlem Co-Operative B. & L. Ass'n v. Frecburn, 54 N. J. Eq. 37 (33 Atl. Rep. 514). Under S. Dak. Comp. Laws, § 5860, providing that an "executor or administrator must take into his possession all the estate of the decedent, real and personal," it is held that both the administrator and the heirs of a deceased mortgagor are necessary parties. Kelsey v. Welch, 8 S. Dak. 255 (66 N. W. Rep. 390).

Sec. 581.

Parties to foreclosure proceedings-Grantees and other lienholders-Trustee in trust deed. A mortgagor's grantee who has not recorded his deed or taken. possession thereunder is not a necessary party. Murdoch v. Leonard, 15 Wash. 142 (45 Pac. Rep. 751). A purchaser of the mortgaged premises who has assumed and agreed to pay a portion of the mortgage debt is a proper and necessary party

to an action to forclose the mortgage. Mudge v. Hull, 56 Kan. 314 (43 Pac. Rep. 242). Other lienholders the priority of whose liens is questioned may be made parties. Cressce v. Security Land Imp. Co., N. J. Eq. (35 Atl. Rep. 451). Where several persons claim liens upon property and there is a dispute as to their respective priority, it is proper, in a suit brought by one lien holder to foreclose, to make all other lien holders parties, determine their rights and priorities, and order a sale and application of the proceeds accordingly. Hughes Bros. Mfg. Co. v. Conyers, 97 Tenn. 274 (36 S. W. Rep. 1093). Applying Ind. Rev. Stat. 1894, § 1108, providing that in a suit to foreclose a mortgage "it shall be sufficient to make the mortgagee or the assignee shown by said record to hold an interest therein, defendants," a nonresident second mortgagee who is made a party and notified by publication by the name given him in the record of his mortgage, although incorrect, is bound by the decree, his correct name nowhere appearing of record. Baugher v. Woollen, 147 Ind. 308 (45 N. E. Rep. 94). In an action to foreclose a trust deed given to secure the bonds of a corporation it is not necessary that the trustee be made a party; and such a deed may be foreclosed by a holder of a part of such bonds without making others who hold the remainder parties. Hammond v. Tarver, 89 Tex. 290 (34 S. W. Rep. 729). The court say: "When there are a number of persons having a common interest in the foreclosure of a mortgage, as, for instance, the holders of bonds secured thereby, any one or more of them may bring suit in his or their own right, and for the benefit of all others interested in the foreclosure of the mortgage; and the court will enter judgment of foreclosure and sale protecting the rights of those who are not actually parties to the suit, and such judgment of foreclosure and the sale thereunder will pass title to the property as against all persons so interested. Jones, Mortg. § 1385; Jones, Ry. § 434; Railroad Co. v. Cowdrey, 11 Wall. 459; Smith v. Swormstedt, 16 How. 288; Campbell v. Railroad Co., 1 Wood, 368 (Fed. Cas. No. 2,366); Wilmer v. Railroad Co., 2 Wood, 477 (Fed. Cas. No. 17,776); March v. Railroad Co., 40 N. H. 548 (77 Am. Dec. -32); Mason v. Railroad Co., 52 Me. 82."

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