Page:North Dakota Reports (vol. 3).pdf/216

 In this court, appellant assigns only the following errors: “First, The judge erred in issuing said injunction. Second, The court erred in overruling appellant's motion to dissolve said injunction, for the reasons (a) that no fact or facts appear in support of said injunction, which could in any manner constitute a valid defense or legal counterclaim against the collection of the whole, or any part, of the amount claimed by appellant to be due in its notice of sale on the mortgage described in the notice of sale mentioned by respondent in his affidavit for the injunction; (b) that it does not appear in support of the said injunction that such proceedings have been begun by appellant, or by any person or persons in its behalf, as would, if carried forward to completion, foreclose the said William McCann of his equity of redemption in the land in question.”

We are clear that these assignments of error are untenable, and hence must be overruled. An inspection of the affidavit of McCann, the mortgagor, discloses that it embraces all facts which the statute requires to be stated as a basis for an application for a judge’s order of the character in question. It sufficiently appeared by the affidavit that the mortgagee had instituted a mortgage foreclosure proceeding by advertisement, and also that the mortgagor had a “valid defense” against the collection of the whole of the ‘amount claimed to be due on such mortgage.” These general averments, if satisfactory to the judge who made the order, would be alone sufficient to authorize the judge, at his discretion, to make the order. But the affidavit goes into detail, and sets out specific facts which tend to show that the sum claimed to be due upon the mortgage was claimed as interest, and that no interest was due upon the note secured by the mortgage in question, by reason of usury, with which it appeared, prima facie, the transaction was tainted. The proceeding is wholly statutory, and there is no requirement that the affidavit made in behalf of a mortgagor shall be couched in any specific terms, nor that it shall be framed under the strict rules governing the pleader in framing the pleadings in an action. All that is required is that the facts