Westbay

Action to foreclose a mortgage executed by W. C. Turner, deceased, to secure his promissory note for $500 and interest, dated March 5, 1890.

W. W. Gray is the administrator of the estate of Turner, and the other defendants are his heirs, and no personal judgment was asked or had against them.

The note and mortgage were given to E. J. McKain, and by him indorsed and assigned to W. W. Westbay, the plaintiff herein. The cause was tried by the court, and a decree entered foreclosing the mortgage.

Defendant W. W. Gray, the administrator of the estate of W. C. Turner, deceased, appeals from the decree and from an order denying his motion for a new trial.

The first point made by appellant for reversal is that no evidence was introduced at the trial to show that the promissory note, the payment of which the mortgage was given to secure, had not been paid.

The sworn complaint averred “that no part of the principal sum or interest mentioned in said promissory note has been paid, save and except the sum of $30 interest paid thereon November 18, 1890, and the sum of $30 interest paid thereon April 27, 1891, and the sum of $97.50 paid on October 6, 1893.”

The only denials of the…