Boyce v. Killip , 184 Or. 457 ( 1948 )

ROSSMAN, C. J.

This is an appeal by the defendants from a decree of the circuit court which ordered the foreclosure of a mortgage executed to secure the payment of a promis sory note in the denomination of $2,750.00, payable in monthly installments. Both instruments were signed by the defendants June 14, 1943. The plaintiffs, as well as the defendants, are husband and wife. The answer admits “the signing and execution of said note and mortgage.” As an affirmative defense, it avers that the defendants were induced by fraudulent representations made by the plaintiffs to sign the note and mortgage. If the averments were not true, it follows that the defendants defaulted in the payment of the note and that the attacked decree is free from error. The affirmative defense makes substantially the same charges as are made in the complaint in a companion suit entitled Boyce v. Killip. The circuit court decided that, suit for the Killips, who are the respondents in this and also in that case. We today announced our opinion in that case. Since the decision in that case sets forth a review of the issues which control the disposition, not only of that case, but also of this one, we shall employ that decision for a statement of the controverted issues.

Since Boyce v. Killip holds that the charges of fraudulent representations were not sustained by the evidence, it follows that the decree entered in this suit is free from error.

Affirmed.