Mentzer v. Abbott

Per Curiam. We do not think that any error was committed by the court in allowing the amendments complained of by the appellant, but an investigation of the testimony introduced at the trial, by reason of its conflicting character, renders a determination somewhat difficult. We are inclined to think, however, that the substance of the agreement of the parties was that no deficiency judgment should be obtained by Mentzer against Abbott and wife, and that both parties acted upon this agreement, and that the object of Mentzer in bringing this action of foreclosure was to escape the possibility of other liens attaching to the land as prior liens. We think that he was entitled to this foreclosure, and that the court erred in dismissing the proceedings. In fact, the record shows that the respondent Abbott consented to the foreclosure during the trial. The judgment of the court will therefore be reversed and the cause remanded, with instructions to foreclose the mortgage as prayed for, and to declare the mortgage a prior lien upon the land, and the usual judgment will be entered, with the exception that the plaintiff will not be entitled to any deficiency. Neither party to recover costs in this court.