Upon a careful examination of the record in this case, I am satisfied that justice has been done between the parties, and while some of the proceedings are not exactly what I would recommend as the best practice, yet I think the decree can be sustained. The so-called interlocutory judgment, in so far as it goes beyond merely the entering of the default of those defendants who had been served and were actually and legally in default, was not good practice, yet I fail to see wherein it has worked any damage to the appellants.
The plaintiff in his petition sets out a legal mortgage by its legal effect. This was all that was necessary in that respect, and although a copy is attached and referred to as an exhibit, which may tend to show that the original mortgage was not witnessed, I do not thinlc that a general demurrer to the petition could for that cause have been sustained. The bill of exceptions is silent as to the mortgage itself as introduced as evidence, and so, notwithstanding the faulty execution of the mortgage as exhibited, we must presume that the judgment of the court was based upon sufficient evidence.
Counsel for appellant makes the point that no judgment of foreclosure could be properly rendered in this case, because the suit is brought against the mortgagor, C. E. Mewis, in connection with his brother as “ C. E. Mewis & Bro.” An examination of the petition cannot fail to show that this position cannot be sustained. The title of the cause is, “Davenport Plow Company, plaintiff, v. C. F. Mewis & Bro, and Frederick Schellpepper and Emelie Mewis, defendants." The petition begins — so far as the defendants are concerned — by alleging that “on the first day of June, 1878, the defendants C. E. Mewis & Bro. made and delivered to *321the plaintiff their promissory note,” etc., and after in like manner setting out the making and delivery of the other notes (making five in all), the petition -proceeds : “The defendant Ered. Mewis, who is the C. E. Mewis mentioned in the firm of C. E. Mewis & Bro., and Emelie Mewis, on the 14th day of January, 1875, to secure the payments of said notes, executed and delivered to the plaintiffs their mortgage,” etc.
It will thus be seen that while C. E. Mewis & Bro. are declared against as a firm, Ered. Mewis is declared against as an individual. As intimated above, the interlocutory judgment, 'amounts to but little, and after the sale of the mortgaged premises, should there be a deficiency, I think that the record is sufficient to enable the district court to render judgment for it against the proper party, to-wit: the firm originally liable on the notes, and both members of which were personally served with summons. As to that part of the decree which directs the sale of the tract of land which is embraced in the decree now owned by the defendant Schellpepper, and not in the mortgage of appellees, first, and the application -of the money arising therefrom to the payment pro tanto of Schellpeper’s decree, before any part of the proceeds of the sales of the other lands be applied thereto, I think it in strict accord with well known principles of equity jurisprudence.
Story lays it down thus: “ The general principle is, that if one party has a lien on or interest in two funds for a debt, and another party has a lien on or interest in one only of the funds for another debt, the latter has a right in equity to compel the former to resort to the other fund in the first instance for satisfaction, if that course is necessary for the satisfaction of the claims of both parties.” 1 Story’s Eq. Jur., § 633.
Upon the whole case I reach the conclusion that *322the so-called interlocutory decree is a nullity except so far as the entering -of the defaults of C. E. Mewis & Bro., Ered. Mewis, and Emelie Mewis is concerned, and that the final decree is substantially correct, and must be affirmed.
Judgment accordingly.