[1] Written Instrument—Promissory Note or Guaranty—Money Payable as Dividends on Stock—Mortgage as Security—Assignabiijty.—A writing, secured by a mortgage, in the form of a promise to pay one thousand five hundred dollars on or before two years fiom its date, with interest after maturity, and reciting that the payee has received from the maker certain shares of corporation stock, on which the maker guarantees dividends for two years of $750, provided' that if in two years the dividends received amount to one thousand five hundred dollars, the note is to be canceled, and if they do not amount to $750 each year, the note shall he credited with the dividends, and the maker at maturity shall pay the balance, is assignable under sections 954 and 1458 of the Civil Code, regardless of whether it be considered a promissory note or a guaranty for the payment of money.

[2] Contract of Indemnity.—There is nothing in the language of the note to support the contention of the respondents that the written, instrument constitutes a contract of indemnity against loss incident to the purchase of the stock and that no cause of action could, arise therefrom without such loss by the holder of both the shares and t'he note, and that the note would have no validity where it had been assigned without an assignment of the shares also.

[3] Id.—Nature of Instrument.—The instrument in question was neither a guaranty nor a warranty, but a direct promise to pay money with a proviso for the payment of the amount, in whole or in part, out of the dividends received by the payee from the shares.

[4] Mortgage—Shares of Stock.—Where the purchaser of land gave in payment shares of stock and a note, secured by a mortgage on the land with a proviso in the note for its cancellation if the payee received dividends from the shares equal bo the amount of the note, such stock did not constitute additional security for the payment of the sum.

[6] Id.—Foreclosure—Parties.—A mortgagor who has disposed of his entire interest is an unnecessary party to the foreclosure of a mortgage.

[6] Id.—Pleading.—In a foreclosure action a defense that the land has been exonerated from liability must be specially pleaded.