Hogan

Suit in equity to set aside a deficiency judgment obtained in an action for the foreclosure of a mortgage. The bill contains three counts. Under the first it is alleged, in substance, that the property sold by the commissioner was, by reason of an error in the description, not the property he was authorized to sell under the foreclosure decree, hence there could be no valid deficiency judgment. The second is the same as the first, with the exception of the statement that the error in the description was intentional and was therefore a fraud. In the third it was alleged that there was an agreement between the parties not to take a deficiency judgment and the taking of the same was, therefore, likewise a fraud on the plaintiffs. A demurrer to the complaint was sustained without leave to amend and judgment was entered thereon from which judgment this appeal is taken. No application was made by plaintiffs to amend and the questions involved in the appeal are whether or not the trial court erred in sustaining the demurrer to the complaint and to each cause of action thereof, with or without leave to amend. In reciting the facts of their cause of action, plaintiffs have set forth that…