promissory note for the amount claimed, the execution of a mortgage to secure the same, time of maturity of the note, its nonpayment, and that the plaintiffs are the owners and holders of the note.144

$2333a. The same - allegation of plaintiff's suretyship.

In

an action by a surety on a promissory note to foreclose a mortgage given to secure him from liability thereon, a judgment in favor of the plaintiff will not be reversed for want of a sufficient allegation in the complaint of the plaintiff's suretyship, when the language of the mortgage, as set out in the complaint, is sufficient to show, in the absence of any proof to the contrary, that the plaintiff was a surety, and no demurrer was interposed pointing out any special defects in the complaint.145

§ 2333b. Allegation of assumption of debt by grantee. An allegation in the complaint in a mortgage foreclosure, that the grantee of the mortgaged premises at the time of his purchase covenanted and agreed to pay the mortgage debt, and discharge the mortgage, is sufficient to sustain a personal judgment against such grantee for the deficiency.146 An allegation that the grantees of the mortgagor, who were made defendants, "assumed and agreed" to pay the mortgage debt, is not the statement of two distinct propositions, but the word "assumed," as used in the allegation, is synonymous with the word agreed;" and a denial in the answer by such grantees, that they "assumed and agreed" to pay the mortgage debt, is not a conjunctive or evasive denial, but is sufficient to raise an issue as to such allegation; and a finding of fact, based upon a supposed admission of the pleadings as to their assumption and agreement to pay the debt, is erroneous.147

§ 2334. Joinder of causes of action. It is not an improper joinder of two causes of action to sue the indorser of a promis

144 Bethel v. Robinson, 4 Wash. St. 446. Where the complaint alleges the giving of a bond conditioned for the payment of a sum of money, and that the mortgage was given as collateral security therefor, and contained the same condition, it must also allege a default in the performance of the condition of the bond. Coulter v. Bowen, 11 Daly, 203.

145 Waldrip v. Black, 74 Cal. 409.

146 Pellier v. Gillespie, 67 Cal. 582.

147 Jones v. Eddy, 90 Cal. 147.

sory note on his liability as such, and to ask a decree against the mortgagor, foreclosing a mortgage given to secure the same note by another party.148 Claim against mortgagor and mortgagee and persons having liens may be united.149 Mortgage and debt may be united. Where a suit was brought to foreclose a mortgage executed by husband and wife to secure a note made by the husband alone, and the complaint prayed for judgment against the husband for the amount of the note and interest, and a decree against both defendants for the sale of the mortgaged premises, it was held that there was no misjoinder of actions, and the complaint was not demurrable on that ground.150

2335. Parties.

The cause of action against the mortgagor on the mortgage in such case, might be prosecuted to judgment, without making the maker of the notes a party.151 Where certain parties executed notes and a mortgage to secure their payment to certain individuals of their number, suit may be brought for the foreclosure of the mortgage, notwithstanding the plaintiffs in the suit are both payors and payees, mortgagors and mortgagees. 152 The right of the plaintiff to go into equity and foreclose a mortgage given to secure a note depends upon the fact whether he was really interested in the subject-matter. 153 A note was executed to O., as the agent of M., and the mortgage to secure the note was made to M. O., under a contract with L., was entitled to one-half of the note; it was held that O., having a right to the note, had a right to foreclose the mortgage. It seems that on foreclosure of a subsequent mortgage, a prior mortgage can not be adjudged to be discharged without consent of the prior mortgagee.155

154

§ 2336. Several notes. Where several notes have been given which are secured by one mortgage, and the notes are assigned to different persons, the assignor has a right, by agreement with

148 Eastman v. Turman, 24 Cal. 382; but see Sands v. Wood, 1 Clarke (Ia.), 263.

149 Farwell v. Jackson, 28 Cal. 105.

150 Rollins v. Forbes, 10 Cal. 299.

151 Sichel v. Carrillo, 42 Cal. 493.

152 McDowell v. Jacobs, 10 Cal. 387.'

153 Ord v. McKee, 5 Cal. 515.

154 Id.

155 McReynolds v. Munns, 2 Keyes, 215.

the assignees, to fix the rights of the purchasers of the several notes to the mortgage security.156 Where, in such a case, the assignee of a note, having the first right to the benefit of the mortgaged security, forecloses when the debt falls due, and obtains a decree under which all the mortgaged property is sold, such foreclosure and sale operate as an extinguishment of the mortgage.157 The holders of the other notes secured by the mortgage have a right to redeem from the sale made under such foreclosure; but when not made parties to the action, must assert this right to redeem within four years, or it is barred by the Statute of Limitations.158

§ 2337. Assignee of mortgagee guaranteeing payment, against mortgagor, grantee assuming payment, and junior incumbrancers.

Form No. 559.

[TITLE.]

The plaintiff complains, and alleges:

I. and II. [As in form No. 55, substituting mortgagee's name for the words "the plaintiff."]

day of

18..,

the

III. That on the ... defendant [mortgagee], by an instrument in writing under his hand and seal, assigned said note and mortgage to plaintiff, which assignment contained a covenant, of which the following is a copy [set it forth].

day of

IV. That on the 18.., the defendants, A. B. and C. D., entered into an indenture under their hands and seals, whereby the said A. B. conveyed to said C. D. the mortgaged premises, subject to said mortgage, and said C. D. covenanted that he would pay off and discharge the same as a part of the consideration of said conveyance [or otherwise, according to the covenant].

V. That no proceedings have been had, at law or otherwise, for the recovery of said moneys, or any part thereof. VI. [Where plaintiff holds other liens.]

That on the......

... in the court of

the plaintiff recovered a judgment, which was

duly given by said court against the defendant [designate which], for

dollars, in an action wherein this

156 Grattan v. Wiggins, 23 Cal. 16.

157 Id.

158 Id.

Vol. II-15

plaintiff was plaintiff [or defendant], and the said defendant herein was defendant [or plaintiff]; and which was on the .. day of .... 18.., duly docketed in the office of the clerk of said county, so as to become, and still remains, a lien on the mortgaged premises.

VII. That the defendants [subsequent incumbrancers] have or claim some interest in, or claim upon said premises, or some part thereof, accrued since the lien of said mortgage.

Wherefore, plaintiff demands judgment:

1. That each of the defendants, and all persons claiming under them, or either of them, subsequent to the execution of said mortgage upon said premises, may be foreclosed of all right, claim, or equity of redemption, or other interest in said. mortgaged premises, and every part thereof.

2. That the same be sold, and the proceeds applied to the payment of the costs and expenses of this action, and the amount due on said bond and mortgage, and the amount of said premium and insurance [and of said judgment], with interest on said moneys up to the time of such payment.

3. That the defendant [mortgagor] may be adjudged to pay any deficiency that may remain after applying all of said moneys so applicable thereto.159

§ 2338. Action by assignees. Where an assignment of a note and mortgage has been made to plaintiffs to indemnify them as sureties on a bail bond for the assignor, and where suit is then pending on such bond, it is proper for them, as such assignees, to institute suit on the note and mortgage; and a decree of foreclosure in such case, with directions to pay the money into court to await the further decree of the court, is proper, or at least, there is no error in such a decree to the prejudice of the defendants.160 If a mortgage is assigned by the mortgagee to another party, as a pledge for the payment of a debt due to the other party by the mortgagee, it is not an improper joinder of several causes of action for the assignee to unite in the same action his claim against the mortgagor and mortgagee, and persons having liens or incumbrances upon the mortgaged property, and make them all parties. 161

159 This form is from Abbott's Forms, No. 681.

160 Hunter v. Levan, 11 Cal. 11.

161 Farwell v. Jackson, 28 Cal. 105.

§ 2339. Averment of assignment. In a foreclosure action, the complaint alleged that the mortgage was executed and delivered to one P.; that he was since deceased, and that his wife, having been qualified as his executrix, had duly assigned the same to the plaintiff; that it was owned and held by him by virtue of the assignment. The answer denied that the mortgage was owned by the plaintiff by virtue of the assignment, or that he was the lawful owner of it. On the trial, the plaintiff produced a mortgage in which the mortgagee was named as "P., acting administrator of the estate of D.; " it was held, that evidence on behalf of defendants to show that the mortgage was taken to secure a debt due to the estate of "D.," and, therefore, that the executrix had no title to it, was admissible.162

executed to the defendant a mortgage upon certain real prop

erty in the city of

in the county of

described as follows [describe it], to secure the payment of .. dollars in ..... years, with interest at

per cent. per annum, payable [half yearly].

II. That on the

tendered to the defendant

day of

cipal of the said mortgage, with interest from the date thereof to that time, and requested the defendant to acknowledge satisfaction for the same, but he refused to do so.

Wherefore, the plaintiff demands judgment:

1. That he be allowed to redeem the said mortgage, upon paying to the defendant the amount due thereon.

2. That upon such payment the defendant satisfy the said

162 Renaud v. Conselyea, 7 Abb. Pr. 105; reversing S. C., 5 id. 346; see, further, as to averment of assignment, Preston v. Loughran. 58 Hun, 210; Rose v. Meyer, 1 How. Pr. (N. S.) 274. An allegation that a mortgage has been assigned to the plaintiff, coupled with an averment that the plaintiff is the holder and owner of the notes secured by the mortgage, sufficiently shows title to the notes, as well as mortgage, in the plaintiff, although the notes and mortgage appear to be payable to another person. Fisher v. Bouisson, 3 N. Dak. 493.