Treat

Appeal from judgment. The sole question here is, as to the ruling of the court below in sustaining defendant’s demurrer to the amended complaint.

The complaint states, in substance, that, in July, 1891, defendant conveyed the premises described in the complaint to one Snook. At the time of the conveyance, the premises were incumbered by a mortgage, given by defendant to one Kelsey, to secure his promissory note for $2,800. Snook did not assume nor agree to pay the said note and mortgage. He afterwards conveyed to one McDonald, who conveyed to plaintiffs. While plaintiffs were the owners of the premises, one Dunning, to whom the note and mortgage had been assigned by Kelsey, began a foreclosure suit. In the foreclosure suit the plaintiffs and the defendant were made parties, and the complaint contained a prayer for a deficiency judgment against them, provided the proceeds of the foreclosure sale should not be sufficient to pay the amount found due on the promissory note and mortgage, according to its terms. Neither the plaintiffs nor the defendant appeared in said suit, and their default was duly entered. A judgment and decree of foreclosure was accordingly made, which decree…