Eaton

This is an action brought by the plaintiff to foreclose a mortgage against R. W. E'aton and E. Steinhauser, the mortgagors. Judgment went for the plaintiff against a large number of defendants, but George Sully and Matilda Sully are the only defendants who have appealed. They have presented their appeal as under section 953a of the Code of Civil Procedure. By the record they have made, they make one contest as against the plaintiff and another as against some of their codefendants. As the principles involved are quite different, we will take up the two contests separately in the order as stated above.

1. If the plaintiff’s lien is superior to the claim of the Sullys, the judgment should be affirmed as to the respondent, the plaintiff in the trial court. This question is hardly debatable. When the loan of the money by the plaintiff to the mortgagors was about to be made, it transpired that there were of record certain instruments which the plaintiff desired to be protected against; and the Sullys executed and delivered, before the money was paid over, an instrument, in part as follows:

The appellants point out the words “have borrowed,” and argue that their act followed and was…