Foreclosure—Separate Mortgages for Same Indebtedness—Single Cause of Action—Pleading—Counts—Misjoinder.—A cause of action to foreclose two separate mortgages made by two different defendants to secure the same indebtedness is single; and the fact that the two mortgages are unnecessarily set forth in what are called the first and second counts of the complaint does not show a misjoinder of distinct causes of action.

Id.'—Different Belief—Character of Complaint—Misnomer.—A'complaint, while setting forth a single cause of action, may at the same time ask for different relief from different defendants, according as they are connected With the cause of action; and the character of the complaint is to he determined from its contents, rather than from a misnomer on the part of the pleader.

Id.—Subsequent Mortgage by Another as Additional Security— Parties to Foreclosure.—In an action to foreclose a mortgage) another person than the original mortgagor, who is averred to have executed a subsequent mortgage, as additional security for the payment of the same debt secured by the prior mortgage, is properly made defendant, in order to secure to the plaintiff the payment of any deficiency that may arise upon foreclosure of the prior mortgage.

Id.—Statement of Obligation—Certainty.—The statement in the subsequent mortgage that it was given as security for the pay-meat of a promissory note, according to its terms, made on a specified date by the prior mortgagor to the plaintiff, and secured by mortgage of the same date, giving its date and place of record, is a sufficiently definite description of the obligation for which the subsequent mortgage was given.

Id.—Reference to Record—Misdescription of Instrument Evidencing Debt—Subsequent Mortgage not Invalidated.—The subsequent mortgage is not invalidated because the instrument to which it refers as a promissory note set forth in the public record of the prior mortgage is not strictly a promissory note within the definition of the Civil Code; but the subsequent mortgagee is presumed to have known its character, and any misdescription of it will not affect his obligation or relieve him therefrom.

Id.—Promise to Pay Principal and Interest Coupons—Pleading—Uncertainty.—Where the complaint sets forth at length the instrument secured, showing it to be described by its terms as a “first mortgage real estate note,” and to consist of a written promise to pay on a date specified a principal sum named to the plaintiff or order, with interest at a specified rate, according to the tenor and effect of twelve interest coupons of two series, of six coupons each, therein described, the designation of the instrument as a promissory note is immaterial; and no uncertainty is created by setting forth in the complaint at length a copy of one of each series of the coupons.

Id.—Consideration of Subsequent Mortgage—Release of Land from Prior Mortgage.—Proof that the subsequent mortgage was executed in order to obtain the release by the mortgagor of part of the land included in the prior mortgage, and that the release and the subsequent mortgage were placed together in escrow until the property mortgaged was shown to be unencumbered, and that they were contemporaneously recorded, establishes a sufficient consideration for the subsequent mortgage.

Id.—Pleading—Want of Consideration—Evidence—Rebuttal.—Where the maker of the subsequent mortgage pleaded in his answer a want of consideration therefor, alad testified thereto, evidence is admissible in rebuttal to establish the consideration thereof, and it cannot be objected that such rebutting evidence is not within the pleadings.

Id.—Effect of Release—Untenable Objections.—The release having been obtained in consideration of the subsequent mortgage, and with the consent of all parties interested, neither of the mortgagors can object that the release operated to absolve him from liability, or that the foreclosure of the prior mortgage is for part only of the property originally mortgaged.

Id.—Personal Guaranty of Prior Mortgage—Foreclosure of Subsequent Mortgage—Defense.—The personal guaranty by a third person of the obligation of the prior mortgagor is not available as a defense to a foreclosure of the subsequent mortgage.

Id.—Conveyance of Fibst Mortgaged Premises to Second Mortgagor. The conveyance oí the premises covered by the first mortgage to the mortgagor who executed the subsequent mortgage, though dated prior to the commencement of the action, if not delivered or recorded until after its commencement, is not available as a defense to the action.

Id.—Attorneys’ Fees not Made a Lien.—The second mortgagor cannot object to the allowance of attorneys’ fees against the first mortgagor if they are not made a lien upon the land, and no property is directed to be sold in satisfaction thereof.

Id.—Fixing Fees Without Evidence.—The court may fix the amount of the attorneys’ fees without receiving any evidence upon the subject.