Shaffer

Action to foreclose mortgage. Finding of the court that one note alleged to be secured thereby was never executed. Judgment and decree for amount of one note only, and for defendant upon the second note, from which judgment plaintiff appeals.

It appears from the record that defendant Susan E. Shaffer was a married woman, the wife of her codefendant, J. W. Shaffer, that she owned as her separate estate the premises described in the complaint; that on July 18, 1899, she and her husband executed to the plaintiff a mortgage on said premises to secure a note for $1,600 and any further advances by the mortgagee, and all other indebtedness of the mortgagors to the mortgagee existing or thereafter arising, or to be contracted for before satisfaction of the mortgage, not exceeding $1,599, with a covenant to pay all encumbrances on said premises, and, upon default, authorizing the mortgagee to pay the same. Before the execution of the mortgage defendant Mrs. Shaffer had commenced the construction of a house on said premises. In September, 1899, plaintiff, ascertaining that a lumber company had a bill amounting to $300 for lumber used in constructing such house, paid the same without the…