after stating the case: The defendants, by their demurrer, admit, for the purpose of testing the sufficiency of the complaint (Brick Co. v. Gentry, 191 N. C., 636), that it was the intention of the parties, at the time of the execution and delivery of the Mewborn mortgage, to make it subject to other liens, including the Gray mortgage, and that, through fraud or mistake, reference to the prior encumbrances was inserted in the warranty clause rather than in the premises or habendum of said instrument, which was held to be insufficient in the foreclosure proceeding (Quere? Hardy v. Abdallah, 192 N. C., 45; Hardy v. Fryer, post, 420); and, further, that by reason of an error or inadvertence on the part of the register of deeds, the Gray mortgage was not properly cross-indexed at the time of its registration. Clement v. Harrison, 193 N. C., 825; Bank v. Harrington, ibid., 625. The defendants, therefore, concede, for present purposes, that their claim of priority is bottomed on mutual mistake or fraud and error. Such a claim ought not to prevail. Equity will not deny to an honest debtor, who wishes to deal justly with his creditors, an opportunity .to be heard in a matter of this kind. His interest is more than moral; it is legal. The contract was made with him. He is the real party in interest, and in no sense a volunteer. C. S., 446.
Pretermitting the question as to whether res adjudicata or estoppel may be pleaded, other than by answer (Upton v. Ferebee, 178 N. C., 194), we deem it sufficient to say that the gravamen of the plaintiffs’ complaint was neither set up nor litigated in the foreclosure proceeding. Crump v. Love, 193 N. C., 464; Polson v. Strickland, ibid., 300; Holloway v. Durham, 176 N. C., 550; McKimmon v. cault, 170 N. c., 54; Clarke v. Aldridge, 162 N. C., 326; Gillam v. Edmonson, 154 N. C., 127. Hence, the authorities cited by appellants, Wagon Co. v. Byrd, 119 N. C., 462, and others, are not controlling on the allegations presently appearing of record.
The doctrine announced in Power Co. v. Casualty Co., 193 N. C., 618, is not at variance with this position.
The demurrer was properly overruled.
Affirmed.