Continental Bank & Trust Co. v. Cunningham

*331HENRIOD, Justice.

Appeal from summary judgment dismissing defendants’ counterclaim. Affirmed. Costs to plaintiff.

Plaintiff sued on a note secured by a second mortgage, executed to obtain funds to improve defendants’ motel property. The motel was encumbered by a first mortgage held by another bank.

The counterclaim historized financial difficulties incident to operation of the motel, and as to defendants’ inability to collect from their vendees on a time contract. The contract contained a provision to clear off encumbrances. The pleading then concluded that on January 8, 1958, plaintiff “entered…