¶1Amendments to petitions are very frequently offered which, upon objection, should not be allowed; but when an amendment to a petition has, without objection, been duly allowed by an order of the court, it must, of course, be treated as a part of the petition.
¶2The plaintiff in the present case filed a petition to foreclose, as an equitable mortgage, an instrument in the form of an absolute deed. An amendment to the petition, which was duly allowed, alleged, in substance, that in another case between the same parties this identical instrument had been finally adjudicated to be, not an absolute deed, but a mortgage. The court, on demurrer, erroneously dismissed the plaintiff’s proceeding. Taking as true the allegations of the petition as .amended, the paper sought to be foreclosed should have been ■dealt with as an equitable mortgage, because the adjudication above mentioned, whether in the first instance rightly made or not, was certainly binding and conclusive upon the defendant, and its effect, as between these parties, was to give the instrument that character, force and effect.
¶3Judgment reversed.