Cody

The defendants Bean and Brown executed a mortgage to the assignor of plaintiff upon two adjoining mines, one of which is called the Rattlesnake Extension Mine. Several other persons were made defendants, as claiming some interest in the mortgaged premises. All the defendants made default except James H. Sturgeon, who answered, setting up, in brief, that plaintiff acquired no interest in the undivided two thirds of said Rattlesnake Extension by said mortgage made by Bean and Brown; that the latter had no right or title to or in said two thirds; and that at the time of the execution of said mortgage, and ever since, said Sturgeon was, and has been, “ the sole, lawful, and exclusive owner” *579 thereof; and the prayer of the answer is, that he, Sturgeon, “be adjudged and decreed the sole exclusive owner of ”, said two thirds, and that plaintiff be enjoined from asserting any interest therein. His answer contains no denial of any of the averments of the complaint which are material in an action to foreclose a mortgage. Judgment was rendered for plaintiff, and said defendant Sturgeon appeals therefrom, and from an order denying a new trial.

The title to a portion of the mortgaged…