Page:North Dakota Reports (vol. 3).pdf/222

 features of the statute which, in strictness, need not have been considered, in order to decide this case. We have done so, of course, only to aid the profession and the public in utilizing a new and peculiar remedy.

Appellant's counsel attempts to distinguish the above entitled case of Thomas Halvorson from the others upon the ground that it appears in Halvorson’s case that the mortgagor has a purely equitable defense, as against his mortgage, and one which, if maintained in court, would operate to defeat the mortgage entirely, and set it aside. Conceding this to be truce, the result must be the same, because if further appears by the affidavit presented to the judge as a basis for the order that “Thomas Halvorson has a legal counterclaim and valid defense to the amount claimed to be due on and under said alleged mortgage.” The printed notice of sale forms a part of the affidavit, and from that it appears that there is “now due on said mortgage $40.36 to said mortgagee.” These facts bring the case of Halvorson within the terms of the proviso, inasmuch as they show that the mortgagor had a “valid defense against the whole * * ® of the amount claimed to be due on such mortgage,” viz. $40.36. Vide section 5411. It must follow from the views already advanced in this opinion that each and all of the orders appealed from in the above entitled matters should be affirmed. The court will so order. All concur.

(54 N. W. Rep. 1026.)