Seaton

Action to foreclose a mortgage. After trial judgment was entered dismissing the action without prejudice, upon the ground that it was prematurely brought. This appeal is from the judgment and from an order denying plaintiff’s motion for a new trial.

On the twenty-third day of April, 1892, the defendant, Henry G. Fiske, executed and delivered to plaintiff his promissory note for eight thousand five hundred dollars, due two years after date, and at the same time executed, acknowledged, and delivered to plaintiff a mortgage upon the lands described in the complaint, as security for the said note. Some time prior to June 25, 1896, after the note and mortgage had become due, the defendant, Henry G. Fiske, sold and conveyed the mortgaged premises to his codefendant, Mary E. Dewing, and she thereupon became, and ever since has been, the owner thereof. After the defendant Dewing became the owner of the said premises, and on the twenty-fifth day of June, 1896, the plaintiff, in consideration of the payment to her of the sum of three thousand five hundred dollars by defendant Dewing, and in consideration that defendant Dewing would pay the interest monthly in advance upon the balance due…