This appeal is from a final judgment entered in an action to fore^close a mortgage upon real estate, and the notice of appeal presents' for review an intermediate order overruling a demurrer taken to the complaint on the ground that it does not state facts sufficient to-constitute a cause of action.
The complaint alleges:
(1) The making of a promissory note by Adeline Reilly, payable-to the order of the plaintiff, which was, before its delivery, indorsed by the appellant, and, so indorsed, delivered for a good consideration to the plaintiff. , (-—-
(2) That thereafter the appellant, for the purpose of securing the-payment of said note, duly executed and delivered to the plaintiff a. mortgage upon the real estate described in the complaint.
That the said mortgage contained the following provision: “ Provided, always, * * * that the said party of the first part will' *46■pay the indebtedness as hereinbefore provided, and if default be made in the payment of any part thereof the party of the second loart shall have power to sell the premises herein described according to law.”
It further contained allegations of default in the payment of the' note by the maker and demand of payment thereof from the appel- > lant, and refusal.
The criticism made upon the. complaint by the counsel for the appellant is that it was necessary for the plaintiff to allege that the ■appellant indorsed the note in. question for the purpose of lending •credit to the maker, and that, in the absence of such an allegation, the legal presumption arising upon the face of the note was that the appellant was a second indorser.
We deem it unnecessary to express any opinion upon this question. . Whether parol'evidence would have been .admissible to show the real .purpose and intent of the indorser, in the absence of'an allegation to that effect, need not now be decided.
The complaint before us contains an allegation that the appellant, in the mortgage, expressly covenanted to pay the note. There was consequently a good cause of action pleaded entirely outside of any ■question of liability arising upon the note. But the judgment appealed from contains no provision adjudging the. appellant to be personally liable for the. debt, and there can be, of course, nó quest tian but that the mortgage was enforcible against the property. In the absence of a provision in the judgment providing that the appellant shall be liable for any deficiency arising upon the sale of the mortgaged property, I am unable to jjerceive what cause he has to appeal.
The judgment and order must be affirmed, with costs, to be paid by the appellant personally. ■
All concurred, except Pratt, J., not sitting.
Judgment and order affirmed, with costs against, the appellant personally. -