Action on promissory note. Defendants demurred to the complaint; the demurrers were sustained, and plaintiff declining to amend, defendants had judgment, from which plaintiff appeals. The grounds of the demurrers were insufficiency of facts, defect, and nonjoinder of parties defendants, and the statute of limitations. The note sued upon was in form the joint note of eight persons. Three of these joint makers, viz., G. E. Drew, H. L. Drew, and Charles J. Perkins, were not made parties to the action. »
The complaint sets forth a series of agreements contemporaneous with the execution of the note, which explain the history of its execution. Plaintiff had caused the foreclosure of certain mortgages against the makers of the note, except as to one maker, Mrs. Atwood, who signed subsequently; the bank also held another mortgage which it was albout to foreclose against these parties. The agreement recites that the bank is desirous of giving these persons further time to pay the sums referred to. It then recites: "We, and each of us, agree one with the other, in consideration of the extension of time to pay, etc., to sign a joint note, payable to said Farmers’ Exchange Bank, for the aggregate sum total of said judgments, .... and take said lands so mortgaged, subject to the agreement of the said bank above referred to (an agreement for further time) in the proportions as follows.” Then follow the names of the parties and the proportions undivided by which they were to hold the lands.
A trustee was chosen to hold the title and to sell and convey the lands and pay the proceeds to the bank, and it was provided that when said note (the note in suit) was fully paid, the trustee should convey the remaining lands to the parties in the proportions named. This agreement was dated February 20, 1892, and was acknowledged February 24th. As part of the same transaction an agreement was entered into by the bank and these same parties at the same time, by which the bank agreed *241 to bid In the mortgaged property and assign the certificate of sale to the trustee agreed upon in the former agreement, and the same parties as before agreed “each to sign a joint note for the aggregate amounts above referred to .... in favor of the Farmers’ Exchange Bank,” etc., and it was agreed that the lands should be sold by the trustee, and the bank agreed to credit the proceeds on the note, and the trustee was to convey" the remaining unsold lands to the parties in the proportion', agreed upon, as already stated. It is alleged that as a part of the same transactions and contemporaneously therewith the note in question was executed and delivered. At the same time the parties conveyed to the trustee. On October 22, 1892, the two Drews and Perkins conveyed to Mrs. Jane Atwood a certain portion of their interest in the lands, and she in turn agreed to sign the note already referred to, and in the recitals of her agreement the note is referred to as joint and several. At the same time Mrs. Atwood executed, acknowledged, and caused to be recorded a statement that she had been permitted to redeem the interest acquired by her through the Drews and Perkins, in consideration of which she agreed to sign the note referred to, and agreed also to the terms of the former agreements between the various parties, and thereupon signed the note. The complaint then recites several successive sales by the trustee and the credits of the proceeds on the note, leaving a balance unpaid of five thousand three hundred and seventy-four dollars and fifty-two cents. It is alleged that prior to the commencement of the action Perkins was discharged from all his debts as an insolvent debtor, and that Mrs. Kane, one of the makers of the note, not made a defendant by her administrator or otherwise, died before the suit was commenced. Appellant claims that the suit can be maintained on the note as joint and several, and that section 1659 of the Civil Code applies, which reads as follows: “Where all the parties who unite in a promise receive some benefit from the consideration, whether past or present, their promise is presumed to be joint and several.”
Section 1430 of the Civil Code provides: “An obligation imposed upon several persons, or a right created in favor of several persons, may be: 1. Joint; 2. Several; or 3. Joint and several.” Section 1659 was intended to accomplish just what it *242 says, i. e., where all the makers of a note, for example, received some benefit from the consideration, and the fact is made in some way to appear, the law raises the presumption that the promise is joint and several. In this case all the parties did receive some benefit from the consideration, and the presumption follows. But this section of the code cannot be construed to mean that the parties, though receiving some benefit from the consideration, may not create a joint liability; section 1430 expressly says they may create such a liability. Where it appears that the parties received some benefit from the consideration, and nothing further is shown from which their intention can be ascertained, the law steps in and makes the promise joint and several. But where it clearly appears that such was not the intention of the parties, and it clearly appears, on the contrary, that the intention was that the promise should be joint, the presumption is overcome, and the promise must be enforced according to its express terms.
Appellant cites
Yorks v. Peck,
Mr. Pomeroy says: “When the liability is joint, all the persons upon whom it rests must be united as defendants in an action brought upon the contract. This rule is general and applies to undertakings, obligations, and promises of all possible descriptions.” (Pomeroy’s Code Remedies, sec. 271.)
In
Harrison v. McCormick,
The judgment should be affirmed.
Gray, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion tEe judgment is affirmed. Harrison, J., Van Dyke, J., Garoutte, J.