Rotiijrook, J.
1. .judgment : uen. stipma The defense to the action was but partial. The single question presented by the pleading was the amount which the plaintiff was entitled to recover. The angwer rajseq no ig^e as to the right of the plaintiff to a decree of foreclosure for whatever amount might be due. By the stipulation, the answer was withdrawn, and the plaintiff was allowed to take judgment for the full amount of the note, interest and costs. Time was extended for two years upon condition that a stay-bond should be filed. This could have been for no other purpose than to prevent a redemption from any sale which it might be necessary to make after the two years. Code, Sec. 3102. That such was the intention is evident from the fact that the defendant was given the right to select the surety, against whom there was to be no judgment. If the appellant’s construction of the stipulation is correct, the plaintiff gave up his mortgage lien and agreed to withhold execution for two years without any security. All that was required was that the name of some one should be used as surety, but without any liability against him. We do not think the stipulation will bear the construction plaimed by appellant. By its terms it does not purport to adjust and settle the lien of the mortgage. If some other lien had been substituted it might, with propriety, be said that the mortgage lien was by implication superseded by the new lien. But no new lien was created, unless it may be the general lien of the judgment upon the defendant’s real estate. That the parties did not contemplate that such a lien would be of any avail, must, we think, be conceded. Indeed, if the judgment was good without a decree of foreclosure, it is not likely the plaintiff would have insisted on the decree, nor that defendant would be here resisting it. We see nothing in this stipulation which, fairly interpreted, implies that the parties intended that the lien of the mortgage should be waived, and we think the court below correctly held that it was not superseded by the stipulation. Of course the decree should be in accord with the stipulation, [115]*115and we suppose it did provide that execution should not issue for two years, in case a stay-bond should be filed, as provided in the stipulation.
This disposition of the case renders a decision upon the motion to strike appellee’s abstract from the files unnecessary.
Affirmed.
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