Garms

The plaintiff seeks herein the foreclosure of a mortgage executed to him by the defendants Jensen, bearing date June 20, 1889, and made Mrs. Upton, one of the respondents herein, a party defendant, under the allegation that she claimed some interest in the premises, subject to the lien of the plaintiff’s mortgage. A cross-complaint was filed on behalf of Mrs. Upton, in which she alleged that the defendant Jensen had executed to her a mortgage upon the same premises on the tenth day of January, 1889, which was a lien thereon prior to that of the plaintiff, and asked a judgment for its foreclosure, and that out of the proceeds of sale the amount of her claim should be paid prior to that of the plaintiff. To her cross-complaint was annexed a copy of the mortgage, which contained a provision that in case of foreclosure the mortgage “ may include in such foreclosure a reasonable counsel fee, to be fixed by the court, together with all payments made by the mortgagee for taxes and assessments on said premises, including taxes on the interest of the mortgagee therein by reason of this mortgage, and for the insurance of the buildings on said premises, and for any adverse claims to the…