
    Sands v. Wood.
    Under the Code, the different causes of action embraced in one petition, must he stated in different counts.
    There is nothing in the Code, which countenances the mingling of separate causes of action in one and the same count.
    Where in an action against two defendants, the petition contained hut a single ■count, and claimed a foreclosure of a mortgage against one defendant, who was payee of the note described in the mortgage, and a judgment against the other defendant, as indorser of the note ; Meld, that there was a misjoin-der of parties.
    It is the professed and settled practice of the Supreme Court, not to search for error, but to adjudicate those questions only whieh are presented.
    Under the act of Jan. 24, 1853, entitled “ An act relating to evidence,” it is not necessary to prove the assignment of a note, unless the assignment is specifically denied by the defendant, under oath.
    Where a bill of exceptions referred to a paper as, “ the mortgage on file,” and it appeared that the suit was brought upon a mortgage, a eopy of which ■ was attached to the petition.; Meld, that the mortgage was sufficiently identified by the bill of exceptions.
    Where suit was brought against the indorser of a promissory note, indorsed as follows: “I assign the within note to Mrs. Sarah Coffin;” Meld, that the Indorser could not be allowed to show by parol testimony, that he sold the note without recourse, and that, at the time of the transfer, it was .expressly .agreed that the indorsee took the note at his own risk.
    
      Appeal from the Wapello District Court
    
    This suit was commenced by tbe plaintiff, on tbe 7th day ■of March, 1853, against Wood and one Joseph Thompson. 'The petition reads as follows: “ To the District Court of Wapello county. Your petitioner, Darid Sands, claims of •the defendants, Joseph Thompson and Andrew Ds Wood, the sum of two hundred and sixty-six dollars and fifty-one «cents, which he alleges to be due him from the said defendants. And for cause of such claim states, that Joseph Thompson, one of the said defendants, executed a promissory note to the said Andrew D. Wood, dated January 14th, 1851, for the sum of two hundred and sixty dollars, payable as follows, to wit; fifteen dollars to be paid on the 15th day of July, 1851; and fifteen dollars to be paid on the 15th day of January, 1852 ; and fifteen dollars to be paid on the 15th day. of July,. 1852 ; and two hundred' and fifteen dollars to-be paid on the 14th day óf January,. 1853. Your petitioner further states, that for the purpose of securing the above sums of money,, the said Joseph Thompson did, at the time and. place when and where the above-described promissory note-was executed, to wit: on the 14th day of January, 1851,, mate, execute, and deliver to the said Andrew D.. Wood, á mortgage, conditioned for the payment of said sums of' money, according; to the tenor and effect of said promissory note, by which said mortgage, the said Joseph Thompson,, mortgaged to the said Andrew D. Wood, in fee, the west half of the southwest quarter of the northwest quarter of' section 29, and the southeast quarter of the northeast of section 30, in township seventy-two. north of range fifteen West. Petitioner farther states, that afterwards, to wit: on-the 31st of October, 1851, the said Andrew. D. Wood, indorsed the said promissory note to one Sarah Coffin; and that the said Sarah Coffin, afterwards,, to wit: on the 13th day of November, 1851,, indorsed the same to petitioner- — - which said promissory note ánd mortgage, by the means and in the manner aforesaid,, have now become the property of' your petitioner! Petitioner further states that the amount above claimed is still due thereon. He therefore asks judgment for that amount, with interest and costs, against the 'said defendants, and an order or .decree of this court, authorizing a sale of the above-described premises.” Appended to the petition, are copies of the note, the mortgage, and the indorsements. The indorsements on the back of the-note, read as follows: “I assign the within note to Mrs.. Sarah Coffin. October 31,1851, A. D. Wood ” — ■“ Eor value-received, I assign the within note, 12th Nov. 1851,. Sarah Coffin.-”' The mortgage was transferred to the plaintiff by the defendant, Wood.
    At the April term of the said District Court, the defendant Thompson failing to appear, judgment was rendered against him by default, for the amount due on the note,, and a decree of foreclosure under tbe mortgage.. Wood filed bis answer, admitting tbe assignment of tbe note, and alleging substantially, that at tbe time of tbe assignment of tbe note, it was tbe express understanding between tbe said defendant ' and tbe agent of Sarab Coffin, that sbe was to take tbe mortgage as full security for tbe payment of tbe money due on said note; that sbe was not to look to tbis defendant, in any event, for tbe payment of said money; and tbat there was a similar understanding between tbe plaintiff and tbe agent of said Sarab Coffin, in relation to tbe liability of tbis defendant, at tbe time of tbe transfer of tbe note and mortgage to tbe plaintiff. Tbis answer is sworn to, and calls upon tbe plaintiff, to reply under oatb. Tbe cause was tben continued. At tbe January term, 1854, a demurrer to tbe answer of tbe defendant was sustained. Tbe cause was tben submitted to • tbe court. On tbe trial, as appears from tbe bill of exceptions, tbe plaintiff introduced in evidence, tbe note and in-dorsements, and mortgage, described in tbe petition, and rested. Tbe defendant tben offered in evidence tbe mortgage on file, and offered to prove by oral testimony, tbe de-fence set up in bis answer, as above stated, wbicb testimony was’objected to, and excluded by tbe court. Judgment was, thereupon, rendered against tbe defendant, and be appeals to tbis court. Tbe errors assigned, will be found stated in tbe opinion of tbe court.
    
      II B. Hendershoit, for appellant.
    
      Knapp & 'Caldwell, for appellee.
   Woodwaed, J.

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. 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 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 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, 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 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 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. 
      
       Wright, 0. J., haying been of counsel, took no part in the decision of this cause.
     