#### CHAS. J. CLARK, Respondent, v. MYLES HENDERSON, Appellant.

(227 N. W. 185.)

Opinion filed October 22, 1929.

*661
      *Olaf Braatelien,*for appellant.

*T. 8.*Stuart, for respondent.

CumstiaNSON, J.

This is an action to foreclose two certain real estate mortgage. The defendant interposed a demurrer to the complaint on the grounds:

1. That the court has no jurisdiction of the person of the defendant.

2. That the court has no jurisdiction of the subject of the action.

3. That plaintiff has not legal capacity to sue.

4. That there is a defect of parties defendant.

5. That two alleged causes of action have been improperly united.

6. That the complaint does not state facts sufficient to constitute a cause of action.

The demurrer was overruled and defendant appeals to this court.

The complaint, the sufficiency of which is challenged, sets forth two causes of action. The first cause of action is in substance that on December 1, 1918, the plaintiff Clark and his wife executed and delivered to the First State Bank of Crosby certain promissory notes and at the same time executed and delivered to that bank, to secure the payment of such notes, a real estate mortgage upon a one hundred sixty acre tract of land in Divide county in this state; that said mortgage was thereafter duly recorded in the office of the register of deeds -of said Divide county; that at the time of the execution and delivery of said mortgage the plaintiff was the owner of the real property ■described in the mortgage and continued to be such owner up to January 21, 1926, “when the plaintiff herein sold said premises to the defendant herein, and executed and delivered to said defendant his warranty deed, and (by) the terms of sale of said premises, entered into and agreed upon by and between the plaintiff and the defendant herein, the said defendant assumed as part of the purchase price of said *662premises and agreed to pay all incumbrances, including tbe mortgage Hereinbefore described, and tbe notes secured thereby, then of record against said premises; that there is past due and unpaid on said notes and mortgage of the principal sum, the sum of one hundred twenty dollars ($120) with eighty dollars and eighty cents ($80.80) accrued interest thereon, making a total of two hundred dollars and eighty cents ($200.80).” It is further alleged that the mortgage was assigned by the First State Bank of Crosby to the First National Bank of Kenmare; and that it was again assigned by the First National Bank of Kenmare to the plaintiff; that said assignments were made for value, were in writing, and weie duly recorded' in the office of the register of deeds of Divide 'comity and that by virtue of such assignments “the plaintiff became and is the owner of said mortgage and the holder of the notes secured thereby.” It is further alleged that a power of attorney was executed arid delivered to T. S. Stuart (plaintiff’s attorney in this action), authorizing him to foreclose the mortgage. The second cause of action relates to a mortgage on another tract of land but the facts ás regards the giving of the notes and the mortgage, 'plaintiff’s ownership of the land, his conveyance to the defendant by deed containing a clause whereby the defendant assuméd and agreed to pay the’debt secured by the mortgage, defendant’s failure'tó make payment and thé assignment of the notes and mortgage to the plaintiff, and the execution of the power of attorney to foreclose, are identical with the allegations'in the first cause of action. The prayer for judgment is that the plaintiff have judgment for the amount of'the notes arid that the land be sold to satisfy the judgment.

(1) The first four grounds1 óf demurrer are so obviously without merit'as to require no discussion. In appellant’s brief'they are, in fact, treated as in a sense dependent upon the last ground of demurrer, namely, that the complaint fails to 'state- facts sufficient to constitute- a cause of action.' '

(2) Logically the sixth and last ground should be first considered, for clearly there cari be no misjoinder of causes if the complaint does not state a cause of action at all. Does the complaint state facts sufficient to constitute a cause of action ? We are agreed that it does. The contention of* the appellant that the complaint fails to state a cause of *663action is predicated upon tbe proposition that when tbe plaintiff took an assignment of tbe notes and mortgages wbicb be bad executed, tbis operated in law as a discharge of tbe notes and mortgages and that, consequently, they cannot be enforced, either against tbe defendant or tbe land. Appellant’s contention completely ignores tbe status of tbe plaintiff and tbe defendant, created by tbe assumption agreement, and their respective obligations and liabilities arising out of it. It is admitted that the defendant expressly assumed and agreed to pay the debts secured by tbe mortgages in question and that the amount thereof was deducted from tbe purchase price. As a result of tbis agreement, as between tbe defendant and tbe plaintiff, tbe defendant, Henderson, became tbe principal debtor and Clark a surety. 19 R. C. L. p. 373; 2 Jones, Mortg. 8th ed. § 920; McDonald v. Finseth, 32 N. D. 400, 408, L.R.A.1916D, 149, 155 N. W. 863; see also Moore v. Booker, 4 N. D. 543, 62 N. W. 607. Defendant’s contract of assumption was an agreement, not merely of indemnity, but to pay the debt (19 R. C. L. p. 374) and rendered him personally liable for tbe payment of tbe debt. Note in 78 Am. Dec. p. 83. See also McDonald v. Finseth, 32 N. D. 400, 408, L.R.A.1916D, 149, 155 N. W. 863. As between tbe plaintiff and tbe defendant tbe debt secured by the' mortgage was tbe defendant’s debt and the plaintiff was under no obligation whatsoever to pay it. Scribner v. Malinowski, 148 Mich. 446, 111 N. W. 1032. Tbe plaintiff, Clark, might have maintained an action to compel, or enforce, payment of tbe debt when it became due (19 R. C. L. p. 374; note in 78 Am. Dec. p. 80); or be bad tbe right, as be did, to take an assignment of tbe mortgage to himself and bring action to foreclose. Scribner v. Malinowski, supra; 19 R. C. L. p. 374; note, 78 Am. Dec. p. 79. See also Pratt v. Buckley, 175 Mass. 115, 55 N. E. 889. We are wholly agreed that tbe complaint in tbis case clearly'states two valid and existing causes of action against the defendant.

Is there a misjoinder of causes of action ? This question is answered by 'our statute. Section 7466 Comp. Laws 1913 provides:

> ''’The plaintiff may unite in tbe same complaint several causes of action, whether they are such as have heretofore denominated legal or equitable, or both, where they all arise out of:

> *664“1. Tbe same transaction, or transactions connected witb the same subject of action; or

> *“2.-*Contract, express or implied; . .

The two causes of actions set forth in the complaint here are both predicated upon express contract. According to the unequivocal provisions of our statute they may be joined in one action. The order appealed from must be and it is affirmed.

BueKe, Oh. J., and Nuessle, Bue.R, and Bibdzell, JJ., concur.