[1] Mortgages—Construction of Deed—Foreclosure.—A deed absolute on its face may be treated as a mortgage and foreclosed as such if that was the intention of the parties thereto.

[2] Id.—Construction of Section 726, Code of Civil Procedure— Application to Guarantors and Sureties.—The provision of section 726 of the Code of Civil Procedure that “there can. be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real or personal property” was enacted for the benefit of the principal debtor and to relieve him from liability from a multiplicity of actions, and does not apply to an individual guarantor or surety, or to a subsequent indorser upon a promissory note, nor in fact to any case where there is no privity of contract between the two existing obligations—that is, where the primary debt and the obligation under the mortgage are separate and distinct obligations.

1. Eight to foreclose deed intended as security for debt, as an equitable mortgage, note, 22 D. R. A. (N. S.) 572.

[3] Id.—Prosecution of Suit Against Principal Debtor—Right to Bring Subsequent Action Against Third Parties on Collateral. The fact that a creditor has commenced and prosecuted to final judgment an action against the principal debtor will not constitute a defense to a subsequent action against third parties to foreclose on collateral given by them as security for the payment of the debt.

[4] Contracts—'Liability of Guarantors and Sureties—Extension of.—Guarantors and sureties cannot he held beyond the express terms of their contracts. Thus, where the limit of their liability is the purchase price of certain property, which is being sold under a lease contract, this liability cannot be extended to cover rentals accruing under the lease or damages for breach of the contract.

[5] Id.—Default of Purchaser Under Lease Contract—Termination of Contract—Election of Remedies.—Where the seller of property under a lease contract, upon default of the purchaser, takes back the property, he treats the contract of sale as at an end. He is then required to stand upon his contract and sue for the breach, or to treat the contract as ended and sue for the rescission. He cannot pursue both remedies.

[6] Id.—Termination of Contract—Loss of Right to Sue for Purchase Price—Release of Collateral.—Where the seller elects to treat the contract of sale as at an end, he not only loses his right to sue for the purchase price of the property but, by terminating his contract, he loses his right to foreclose on the collateral given as security for the payment of the purchase price.

5. When plaintiff is bound to elect remedy, note, 4 L. B. A. 147.