Wallace

The plaintiff, Wallace, as assignee in insolvency of one John Krohn, brought this action to foreclose a mortgage executed to said Krohn by defendants McKenzie and Rule. Dickey was made a defendant upon averment that he claimed some interest in the mortgaged premises which is alleged to be subsequent and subject to the lien of plaintiff’s mortgage. Dickey by answer and cross-complaint set up that he had a mortgage on said premises executed by said McKenzie and Rule, which was prior and superior to the mortgage of plaintiff. The court found in favor of Dickey, holding plaintiff’s mortgage to be second and subject to that of Dickey. Plaintiff appeals from the judgment and from an order denying his motion for a new trial.

The facts are substantially these: A few days prior to •the execution of- either of the mortgages Krohn, who was a creditor of McKenzie and Rule, requested the latter to give him a mortgage to secure the'amount owing by them to him; and they informed him that they would do so if he would accept the same as a second mortgage subject to one which they had given or were about to give to Dickey. To this Krohn assented. A mortgage which had been prepared by or for…