
    Peters Trust Company, appellee, v. Jesse Lewis et al., appellants: John F. Robinson et al., appellees.
    Filed January 8, 1932.
    No. 28030.
    
      Simon A. Simon, Edgar B. Zabriskie and Webb, Kelly & Lewis, for appellants.
    
      °Morsman & Maxwell and T. B. Dysart, contra.
    
    Heard before Rose, Good and Day, JJ., and Frost and Messmore, District Judges.
   Per Curiam.

This is a proceeding by mortgagors to set aside a decree foreclosing a mortgage on real estate and to vacate a confirmed judicial sale of the mortgaged premises on the ground that the mortgagee, plaintiff in the foreclosure suit, was not the real party in interest. A defendant herein, to whom the decree of foreclosure had been assigned and by whom the mortgaged real estate had been purchased at the judicial sale, demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained. Mortgagors elected to stand on their petition and the proceeding herein was dismissed. Mortgagors appealed.

The sufficiency of the petition to state a cause of action is the question presented by the appeal. The petition does not state any defense to the mortgage or to the decree of foreclosure or to the judicial sale, unless it is embodied in the plea that the mortgagee, plaintiff in the foreclosure suit, was not the real party in interest. An examination of the petition herein leads to the finding that it fails to state facts sufficient to show that plaintiff in the foreclosure suit did not have authority to maintain the action. The demurrer, therefore, was properly sustained and the proceeding dismissed.

Affirmed.  