Norton

In a suit to set aside a former decree of foreclosure of a mortgage of real property, claimed by the plaintiff to have been ineffectual for want of a necessary party, at the opening of the trial the suit was dismissed as to all fictitious defendants and the defaults of all named defendants, other than N. C. Newerf and Mrs. A. J. Bolster, were entered. They appeal on the judgment-roll alone from the decree in favor of the plaintiff. The appellants joined in a formal answer and subsequently N. C. Newerf filed an amended answer by which he joined issue on most of the allegations of the complaint, and in which he set up affirmatively five separate and distinct defenses. The findings of fact are very lengthy and need not be set forth nor summarized at length. In the briefs the essential facts are conceded.

In 1910 the plaintiff, who owned the mortgaged property, agreed with L. L. Newerf to sell it to him for twelve thousand five hundred dollars, of which five thousand dollars was payable in two equal installments and the remaining seven thousand five hundred dollars was to be evidenced by a note. The property was to be conveyed to the buyer on the payment of the second installment of…