
    L. GRAY v. GEORGE W. BLABON.
    November 30, 1898.
    Nos. 11,257—(127).
    Foreclosure of Mortgage — Sale under First Mortgage — Recovery of Surplus by Second Mortgagee — Failure of Proof.
    In an action by an assignee of a second mortgage to recover a surplus arising from a foreclosure sale on tbe first mortgage, tbe answer denied tbe execution of tbe second mortgage. It was introduced in evidence on tbe trial, but tbe promissory note referred to in sueb second mortgage, and secured by it, was not introduced in evidence or its absence accounted for. Held a fatal defect in plaintiff’s proof, and judgment was properly ordered for defendant.
    From an order of the district court for Hennepin county, Lancaster, J., denying a motion for a new trial after directing a verdict for defendant, plaintiff appealed.
    Affirmed.
    
      Smith ct- Smith, for appellant.
    
      Brooks & Hendrix, G. 8. Jelley and L. K. Hull, for respondent.
    This being virtually a suit to foreclose the second mortgage, it is absolutely essential that the debt be proven, especially when the execution of the note and mortgage is denied. See Ward v. Mun-son, 105 Mich. 647, and cases cited; Boone, Mort. § 204; Franklin v. Van Cott, 11 Paige, 129; Wiltsie, Mort. § 755.
   CANTY, J.

This action is similar to Simmer v. Blabon, supra, page 341, except that this action is brought by the assignee of the second mortgage. The answer denied, on information and belief, that any such mortgage had been executed. On the trial plaintiff introduced the second mortgage in evidence, and the assignment of it to himself, but he did not introduce in evidence the promissory note referred to in that mortgage and secured by it, or account for the absence of that note. The execution of the note and the transfer to him were not admitted. In our opinion, there was a fatal defect in his proof. He was in fact suing to recover the indebtedness for which the note was given. If he brought suit on the note, he would have to produce it on the trial or account for its absence. He would have to do likewise if he brought an action to foreclose the second mortgage, and this is, in effect, such an action.

The order appealed from is affirmed.  