Woodwaed, J.(1)
It is not easy to determine whether tbe petition in tbis case, is at law or in chancery. It seems to be an amalgamation of a petition at law on a promissory; note, and in chancery, to foreclose a mortgage, given to secure tbe payment of tbe note. While tbe Code intends to. [266] produce facility in tbe practice, and permits tbe union of several causes of action in tbe same petition (§ 1751), it does not intend to favor confusion. Before tbe adoption of tbe Code, several causes of action (witbin certain limits) might be united in tbe same declaration, but tbey must be stated in different counts. So, under tbe Code, tbe different causes of action, embraced in one petition, should be stated in separate counts. There is no other way in which tbe different issues can be distinctly made, and tbe trial proceed clearly, upon tbe separate questions raised. There is nothing in tbe Code, which countenances tbe mingling of separate causes of action in one and tbe same count. We will look at this petition, in two or three points of view.
As a petition to foreclose a mortgage, there is, of course, no objection to its referring to, and showing tbe note. But there probably is an objection to seeking to recover on tbe note, and on tbe mortgage, at tbe same time, if it is meant to ask a judgment at law on tbe note, and also a decree of foreclosure. It would not be supposed that this was tbe intent, if Thompson alone were made defendant. But Wood is made defendant, also. Now, Thompson is liable on both note and mortgage, and Wood is liable on tbe note, only. And there is a prayer for judgment for tbe amount due on tbe note, and. for a foreclosure of tbe mortgage. This state of tbe case, leads irresistibly to tbe conclusion, that tbe petitioner seeks both a decree of foreclosure against Thompson, tbe mortgagor, and a judgment on tbe note, against him and Wood. This drives us intojiwo difficulties: 1. Two causes of action are united in one count; 2. One of tbe defendants is not liable on both of those causes, so that, in respect to one of them, there is a misjoinder of parties. An action against both on tbe note, would be correct; but a bill to foreclose should be against Thompson alone. Tbe question, then, is, bow shall this court treat tbe case, tbe defendant having taken no exception to this state of things ? Tbe errors assigned are these only:
First. Tbe District Court erred in rendering judgment in favor of Sands, without proof of tbe use of due diligence in [267] tbe institution and prosecution of a suit against tbe maker of tbe note and mortgagor, and without proof of the assignment of the note to plaintiff.
Second. The District Court erred in excluding the oral testimony of the witness Coffin, and the deposition of the. deponent, James Hall.
It is tbe professed and settled practice of this court, not to search for errors, but to adjudicate those questions only which are presented. Yet, sometimes, in the examination of a question which is presented, tbe court cannot belp noticing others. Such is the case here. Is it the duty of the court, then, to send the cause off upon errors of their own finding, or to decide upon tbe errors of which tbe defendant complains ? "When it can be done AYithout injustice, it seems tbe better course to decide the cause 'upon tbe questions presented ; yet tbe court has preferred to notice tbe above matters, lest this mode of practice should seem to receive a silent sanction.
Thompson gave the note and mortgage to Wood; Wood indorsed tbe note to Sarah Coffin, and she to Sands, tbe plaintiff; and then Wood made a written assignment of the mortgage to Sands. Sands sues Thompson and Wood. One error contained in the first assignment is, that tbe court rendered judgment in favor of the plaintiff, without his proving the assignments of the note. Tbe papers do not show that this was made a point below, nor is there any exception taken to it. But setting this aside, it is not perceived why tbe objection is not covered by the statute of 1858, 187.
The second matter of error, klleged to be contained in this assignment is, that judgment was rendered without proof of the use of due diligence in tbe prosecution of a suit against tbe maker, Thompson. And defendant’s argument shows that he embraces in this, the assumed fact, that plaintiff had not shown a demand and notice, on tbe indorser. It was at this part of the case, that we thought we might have misconceived the case, to the defendant’s disadvantage; and, therefore, a rehearing was ordered. Among the many difficulties in tbe case, we find that in April, 1853, a decree of [268] foreclosure was rendered against Thompson, and the cause continued as to Wood. At the next term, Wood filed a supplemental answer, and the cause was continued, on bis motion. On the 25th. of January, 1854, a demurrer to this . answér was sustained, and on the 27th of the same month, judgment was entered against him for the balance due, after the sale of the mortgaged premises. At the following September term, 1854, the cause was continued, and at the January term, 1855, judgment was again rendered against Wood for the said balance. Tet the record shows nothing as to how the first' judgment was disposed of. Following this second judgment, is a bill of exceptions, commencing as follows: “Be it remembered, that on the trial of this cause, the plaintiff introduced in evidence, the note and indorse-ments described in the petition and mortgage, and rested. The defendant introduced the mortgage on file, and the witness Coffin, and offered to prove orally,” &c'., then proceeding to state the matter which is commented on under the second assignment of error; and this is the whole drift of the bill of exceptions — that is, the refusal to receive the parol evidence. Now, although we may have erred in the detail of our former opinion, still we cannot help the appellant. His bill of exceptions does not show that the plaintiff did not prove demand and notice, or due diligence, instead thereof. It nowhere appears that the plaintiff offered in evidence only the note and mortgage, and no other testimony. The bill of exceptions taken after the first judgment, does this tolerably fairly; but the second one, which is the one before us, does not. It stands solely upon the refusal to admit the parol testimony.
Finally, on this part of the case, the defendant urges that he can take exception in'this court, for the first time, to the sufficiency of the declaration, in ‘not alleging demand and notice. It is true that this lies in the record, and generally error may be assigned upon the record, without a bill of exceptions. But the misfortune of the defendant is, that he has not assigned any such error, but has placed his cause Upon other grounds. We find it impossible to help him, [269] without violating the plainest rules. The case is full of erroneous matter, but he has taken advantage of none of it, and we cannot reach it, without his aid.
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Woodwaed, J.(1)
It is not easy to determine whether tbe petition in tbis case, is at law or in chancery. It seems to be an amalgamation of a petition at law on a promissory; note, and in chancery, to foreclose a mortgage, given to secure tbe payment of tbe note. While tbe Code intends to. [266] produce facility in tbe practice, and permits tbe union of several causes of action in tbe same petition (§ 1751), it does not intend to favor confusion. Before tbe adoption of tbe Code, several causes of action (witbin certain limits) might be united in tbe same declaration, but tbey must be stated in different counts. So, under tbe Code, tbe different causes of action, embraced in one petition, should be stated in separate counts. There is no other way in which tbe different issues can be distinctly made, and tbe trial proceed clearly, upon tbe separate questions raised. There is nothing in tbe Code, which countenances tbe mingling of separate causes of action in one and tbe same count. We will look at this petition, in two or three points of view.
As a petition to foreclose a mortgage, there is, of course, no objection to its referring to, and showing tbe note. But there probably is an objection to seeking to recover on tbe note, and on tbe mortgage, at tbe same time, if it is meant to ask a judgment at law on tbe note, and also a decree of foreclosure. It would not be supposed that this was tbe intent, if Thompson alone were made defendant. But Wood is made defendant, also. Now, Thompson is liable on both note and mortgage, and Wood is liable on tbe note, only. And there is a prayer for judgment for tbe amount due on tbe note, and. for a foreclosure of tbe mortgage. This state of tbe case, leads irresistibly to tbe conclusion, that tbe petitioner seeks both a decree of foreclosure against Thompson, tbe mortgagor, and a judgment on tbe note, against him and Wood. This drives us intojiwo difficulties: 1. Two causes of action are united in one count; 2. One of tbe defendants is not liable on both of those causes, so that, in respect to one of them, there is a misjoinder of parties. An action against both on tbe note, would be correct; but a bill to foreclose should be against Thompson alone. Tbe question, then, is, bow shall this court treat tbe case, tbe defendant having taken no exception to this state of things ? Tbe errors assigned are these only:
First. Tbe District Court erred in rendering judgment in favor of Sands, without proof of tbe use of due diligence in [267] tbe institution and prosecution of a suit against tbe maker of tbe note and mortgagor, and without proof of the assignment of the note to plaintiff.
Second. The District Court erred in excluding the oral testimony of the witness Coffin, and the deposition of the. deponent, James Hall.
It is tbe professed and settled practice of this court, not to search for errors, but to adjudicate those questions only which are presented. Yet, sometimes, in the examination of a question which is presented, tbe court cannot belp noticing others. Such is the case here. Is it the duty of the court, then, to send the cause off upon errors of their own finding, or to decide upon tbe errors of which tbe defendant complains ? "When it can be done AYithout injustice, it seems tbe better course to decide the cause 'upon tbe questions presented ; yet tbe court has preferred to notice tbe above matters, lest this mode of practice should seem to receive a silent sanction.
Thompson gave the note and mortgage to Wood; Wood indorsed tbe note to Sarah Coffin, and she to Sands, tbe plaintiff; and then Wood made a written assignment of the mortgage to Sands. Sands sues Thompson and Wood. One error contained in the first assignment is, that tbe court rendered judgment in favor of the plaintiff, without his proving the assignments of the note. Tbe papers do not show that this was made a point below, nor is there any exception taken to it. But setting this aside, it is not perceived why tbe objection is not covered by the statute of 1858, 187.
The second matter of error, klleged to be contained in this assignment is, that judgment was rendered without proof of the use of due diligence in tbe prosecution of a suit against tbe maker, Thompson. And defendant’s argument shows that he embraces in this, the assumed fact, that plaintiff had not shown a demand and notice, on tbe indorser. It was at this part of the case, that we thought we might have misconceived the case, to the defendant’s disadvantage; and, therefore, a rehearing was ordered. Among the many difficulties in tbe case, we find that in April, 1853, a decree of [268] foreclosure was rendered against Thompson, and the cause continued as to Wood. At the next term, Wood filed a supplemental answer, and the cause was continued, on bis motion. On the 25th. of January, 1854, a demurrer to this . answér was sustained, and on the 27th of the same month, judgment was entered against him for the balance due, after the sale of the mortgaged premises. At the following September term, 1854, the cause was continued, and at the January term, 1855, judgment was again rendered against Wood for the said balance. Tet the record shows nothing as to how the first' judgment was disposed of. Following this second judgment, is a bill of exceptions, commencing as follows: “Be it remembered, that on the trial of this cause, the plaintiff introduced in evidence, the note and indorse-ments described in the petition and mortgage, and rested. The defendant introduced the mortgage on file, and the witness Coffin, and offered to prove orally,” &c'., then proceeding to state the matter which is commented on under the second assignment of error; and this is the whole drift of the bill of exceptions — that is, the refusal to receive the parol evidence. Now, although we may have erred in the detail of our former opinion, still we cannot help the appellant. His bill of exceptions does not show that the plaintiff did not prove demand and notice, or due diligence, instead thereof. It nowhere appears that the plaintiff offered in evidence only the note and mortgage, and no other testimony. The bill of exceptions taken after the first judgment, does this tolerably fairly; but the second one, which is the one before us, does not. It stands solely upon the refusal to admit the parol testimony.
Finally, on this part of the case, the defendant urges that he can take exception in'this court, for the first time, to the sufficiency of the declaration, in ‘not alleging demand and notice. It is true that this lies in the record, and generally error may be assigned upon the record, without a bill of exceptions. But the misfortune of the defendant is, that he has not assigned any such error, but has placed his cause Upon other grounds. We find it impossible to help him, [269] without violating the plainest rules. The case is full of erroneous matter, but he has taken advantage of none of it, and we cannot reach it, without his aid.
The second assignment of error claims, that there was error in rejecting the testimony of Coffin, and the deposition of Hall. This assignment is supported by the bill of exceptions. The bill says, “the defendant introduced the mortgage on file, and the witness, Coffin,” &c.- The plaintiff objects that this reference to the mortgage, is not sufficient in a bill of exceptions, and does not properly identify it; and that the assignment of error, so far as it relates to this mortgage, ought to be disregarded. He claims that a paper, so referred to, ought to be incorporated into the bill. We have had occasion, at this term, to say much in relation to the proper manner of bringing up papers, and their identification, in the cases of Claggett v. Gray, ante, 19; Mays v. Deaver, ante, 216; McCrary v. Crandall, ante, 117; and Claussen, guardian v. La Franz, ante, 226. We have not yet held, however, that a paper must be incorporated into a bill; but we have held, that, if not so incorporated, the paper must be identified with clearness and certainty. There has been very great looseness upon this point of practice, and it is the source of much embarrassment to the courts, and detriment to parties.
But how stands the paper in question ? When suit is brought upon a written instrument, the law requires the instrument, or a copy of it, to be attached to the petition. In this case, the petition is manifestly based upon a mortgage, a copy of which is annexed, and which thus becomes part of the petition. The reference in the bill of exceptions, “the mortgage on file,” although rather loose, and not well defined, is sufficient to justify the court in looking at that instrument, it being part of the pleading. Eor any other state of things, such a reference would hardly answer. And if the defendant does not mean that paper, he will see the insufficiency of his reference.
The defendant wished to prove, by the witness, Coffin, and the deposition of Hall, that Wood sold the note and mortgage to Sarah Coffin, without recourse to him; that it was [270] expressly agreed, that sbe was to take tbe note and mortgage as ber only security, and at ber own risk; that Sands took them with full notice of such agreement; and that Sands’ own attorney, advised tbe manner of tbe indorsement, so as to avoid any liability on tbe part of Wood. Tbe effect of tbe evidence here offered, is to entirely change, or rather to negative, tbe contract of tbe indorser, as made in writing on tbe note. Tbe indorsement places him under tbe common law liability of an indorser. Tbe testimony offered would take this all away. It could not be admitted, without violating a ¡olain and necessary rule of law. Tbe mortgage does not provide (as held by defendant), that tbe land, and that alone, is to be taken in full j>ayment of tbe debt. If tbe mortgagee, or bis assignees, should take possession under tbe terms of tbe mortgage, tbe mortgagor could still maintain a bill to redeem. But, if tbe mortgage does provide, as claimed, then there was no need of tbe testimony offered, and probably it would not be admissible, upon tbe same ground, that tbe contract is in writing. It seems to tbe court sufficient to refer to tbe multitude of authorities against contradicting, or changing a written contract, by parol evidence. But tbe defendant argues, that tbe proposed testi-mon3r, does not contradict tbe written contract of indorsement. We can conceive no case, in which parol testimony could do so more plainly. There is no ambiguity to be explained ; but tbe defendant wishes to show, that a contract was made different from that expressed by tbe writings. To sustain bis position, be cites Williams v. Crary, 8 Cowen, 246. This was a case of a will and a bequest, and tbe court says: “ Tbe question then arises, for what purpose was this bequest made ? Evidence to show tbe interest of tbe testatrix, is not objectionable, on tbe ground of varying or contradicting any of tbe provisions of tbe will. Such evidence goes to explanations independent of tbe will, respecting a state of facts, about which it is silent.” This quotation shows tbe inapplicability of tbe case. Tbe defendant also cites, King v. Laindon, 8 T. R. 379. That part of tbe marginal abstract of tbe case, which says : “ Parol evidence may be [271] received to explain a written contract,” is not law, so stated, Nor does tbe case support it. There must, generally, at least, be some ambiguity to admit parol evidence. Tbe language of LawkeNCS, J., explains tbe position of tbe case; be says tbe evidence was not offered to contradict tbe written agreement, “ but to ascertain a fact collateral to tbe written instrument, in order to explain tbe intention of tbe parties, tbe instrument being in some measure equivocal.” Tbe case before us is very different from this, and is very clear. If there is hardship, or bad faith, in tbe transaction, tbe court does not. know it, and cannot remedy it. It would seem as though tbe rule of law on this subject, bad been- settled long enough,, to enable men of business, to become acquainted with, and conform to it. We cannot undertake to determine, whether -the plaintiff may not render- himself liable for a violation of bis parol contract, but confine ourselves to tbe case before us. Tbe judgment is therefore affirmed.