Lewis v. Douglas County Co-operative Store

Lewis, J.

1. Where one executed and delivered to another two promissory notes and two mortgages, one of which covered described land and specified that it was given to secure the payment of one of the notes, and the other of which described other land and specified that it was given to secure the payment of the other note ; and where the mortgagee instituted one proceeding for the foreclosure of both mortgages, and thereon obtained a rule absolute ; and where, from an' inspection of the entire record of that proceeding, it manifestly appears that the plaintiff sought-to subject to the satisfaction of eacli particular mortgage that property only which was therein described, and the rule absolute fairly construed was to this effect, it was proper for the clerk to issue execution accordingly, and the duty of the sheriff to enforce the execution as issued.

Argued April 28,— Decided May 14, 1900.

Illegality. Before Judge Janes. Douglas superior court. November term, 1899.

B. G. Griggs, for plaintiff in error. L. Z. Dor sett and Roberts & Hutcheson, contra.

2. In the light of the entire record, the court did not err in holding that the defendant’s affidavit of illegality was not well taken.

Judgment affirmed.

All the Justices concurring, except Msh, J., absent.