Suit on notes, and to foreclose a mortgage. *232Answer: denial; payment; set-off; and former recovery on the same mortgage. Reply: denying the payment, and admitting the set-off. Demurrer to the fourth paragraph of the answer sustained; which presents the only point made. It appears that the mortgage was given to secure three notes, of even date, but payable at different days; they were all assigned, the second to a person other than the plaintiff, who sued and, it is alleged, had judgment for the amount and for foreclosure. The answer relies on this proceeding as a merger of the mortgage contract in said judgment. To have enabled us to have passed upon that point, the record of the judgment should have been filed with, or made a part of, the answer. It was not done, and, consequently, the demurrer thereto was correctly sustained.
George Gardner, for the appellants. W. C. Wilson, for the appellee.The appellee confesses that an error occurred in taking a personal judgment against the wife, who signed the mortgage, but not the notes.
Per Curiam. — For the error confessed, so much of the judgment is reversed; but the balance is affirmed, at the costs of the appellee.