Patton

In this case a demurrer to the complaint was sustained by the court below, and, as plaintiffs declined to amend, judgment passed for defendants. Plaintiffs bring this appeal from the judgment on the judgment-roll, and contend that the court erred in sustaining the demurrer. The material substance of the complaint may be briefly stated as follows: In May, 1887, George E. White commenced an action to foreclose a mortgage executed by Milo Patton and J. H. Patton on a tract of land owned by them, to which action the defendant herein, David Thomson, was made a party defendant on the ground that he claimed a subsequent lien upon the mortgaged land. Thomson appeared, and filed a cross-com *872 plaint setting up his subsequent mortgage executed by Milo and J. H. Patton on the same land, and praying that it be foreclosed, but failed to serve his cross-complaint on the Pattons, his codefendants, against whom he prayed for such relief. In October, 1887, the Pattons having failed to answer or appear, the court decreed a foreclosure of each mortgage, ordered a sale of the land, and directed the proceeds of the sale to be applied—First, to the payment of $5,127 found due on White’s prior…