below is based upon the record in the McCann appeal, but the controlling facts and governing principles of law are common to all of the cases, and hence a single opinion will suffice for all.
A. S. Drake, for appellant.
E. A. Maglone and Ball & Watson, for respondents.
Wallin, J., (after stating the facts as above.) This proceeding originated under the proviso embraced in § 5411, Comp. Laws, regulating foreclosures of mortgages by advertisement. The proviso is as follows: “Provided, that when the mortgagee or his assignee has commenced procedure by advertisement, and it shall be made to appear by affidavit of the mortgagor, his agent or attorney, to the satisfaction of the Judge of the District Court of the county where the mortgaged property is situated, that the mortgagor has a legal counterclaim, or any other valid defense, against the collection of the whole or any part of the amount claimed to be due on such mortgage, such judge may, by an order to that effect, enjoin the mortgagee or his assignee from foreclosing such mortgage by advertisement, and direct that all further proceedings for the foreclosure be had in the District Court properly having jurisdiction of the subject matter; and, for the purpose of carrying out the provisions of this act, seryice may be had upon the attorney or agent of the mortgagee or assignce.” On the 25th day of September A. D. 1891, William McCann, the respondent, presented to the Judge of the Second Judicial District Court of North Dakota his affidavit, which after the title and venue is as follows:
“William McCann, being duly sworn, deposes and says that he is the mortgagor mentioned and described in the annexed notice of mortgage sale, which said notice, hereto annexed, marked ‘Exhit A,’ and made a part of this affidavit. Deponent further says that he has a legal counterclaim, valid defense, against the collection of the mortgage, and the amount claimed therein to be due thereon; that the sum, $86.43, claimed in said notice to be due on said mortgage is, as deponent is informed and verily
