Giselman

The appeals are from the judgment and from an order denying a new trial.

Action by plaintiffs as executors of the last will of S. C. Hastings, deceased, to reform, and as reformed to foreclose, a mortgage executed by defendant.

Starr executed the note and mortgage in suit to William Giselman, trustee, in payment and cancellation of an existing note, also secured by mortgage, made by him to S. 0. Hastings. A few days thereafter Giselman indorsed the note, “ Pay to the order of S. C. Hastings, without recourse, William Giselman, trustee,” and delivered it to Hastings. At the same time he executed, as trustee, an assignment to Hastings of the mortgage. These papers, upon the death of Hastings, coming into the hands of the executors, of whom Giselman is one, this action was in due time commenced.

The defendant meets it by answer and cross-complaint, whereby he claims that he executed the note and *655 mortgage to Giselman, as trustee, for the use and benefit of the daughters of said Hastings; that at the time of the assignment to Hastings he knew this fact, and, so. knowing, took the note and mortgage without consideration; that thereafter Ella Hastings, daughter of S. 0. Hastings,…