On Petition for Rehearing.
Mr. Justice Kingdelivered the opinion of the court.
4. It is ably argued in support of the petition for rehearing that we are in error in assuming that plaintiffs *369atre mutually interested in the subject of the suit, and in obtaining the relief demanded, for which reason it is maintained that plaintiffs were improperly joined. If this were an action at law .upon the promissory notes, appellant’s position might be tenable. Or if, under our statute, the proceedings to foreclose the mortgage were required to be by an action at law in place of by a suit in equity, the authorities cited by counsel would be pertinent. The case of Swenson v. Plow Co., 14 Kan. 387, at first blush would appear to support appellant’s contention, but a careful examination thereof discloses that under the statute of that State proceedings for foreclosure of mortgages are tried as actions at law; the court on this point there observing: “But there is no separate action on the mortgage. The action must always be on the note, and it may be on the note either with or without the mortgage. And the action on the note, whether with or without the mortgage, is, so far as the note is concerned, in the same manner as any other action on a promissory note. Either party has a right to a jury, and the judgment is a personal judgment against the defendant, substantially the same as. any other personal judgment. The judgment is much like a judgment in an ordinary attachment case. The judgment is for the amount due on the note, with an order that the mortgaged property be first sold to satisfy the judgment, and that, if it does not satisfy the judgment, then that a general execution be issued against the property of the defendant.” The distinction thus indicated appears in the decisions from each of the states where held that joint mortgagees holding separate notes cannot be joined as plaintiffs. In the case under consideration the mortgage is the subject of the suit. It is the mortgage which gives a court of equity jurisdiction, and it is elementary that, when jurisdicton is acquired for one purpose, it is retained for all purposes.
*3705. This point was under consideration in McKinney v. Collins, 88 N. Y. 216, the court there holding that “subject of the action” is not synonymous or interchangeable, with the phrase “cause of action,” the words “cause of action” having reference to actions at law, while “subject of action” relates to proceedings where specific relief is sought, rather than a judgment against person. Of this class are contracts for sales of real property, mortgages thereon, etc.
6. The mortgage in the case at bar, being the subject of the suit, or the res, giving the court jurisdiction, and each of the plaintiffs being interested “in the subject of the suit, and in obtaining of the relief demanded,” they may be joined as plaintiffs, as expressly stated in Section-394 of the Code, unless their interests, as indicated in the last sentence of the section cited, are claimed adversely to each other. That they do not claim adversely to each other is manifest from the fact that they consent to join as plaintiffs, in doing which they impliedly consent to share pro rata in any proceedings arising out of the foreclosure of the mortgage. As stated in 27 Cyc. 1147:
“Where a mortgage is given to two mortgagees, jointly, but to secure separate debts, they do not take as joint tenants, but as tenants in common, and they will take, not necessarily by moities, but undivided interests proportioned to their respective claims.”
And a court of equity in pursuance of the chancery rule of doing complete equity to all parties before the court, in the foreclosure decree may, when warranted by the pleadings and proof, determine all questions and claims arising between different parties to the suit as to the ownership of the debt, liability for or exoneration from it, the proportions in which it should be shared, or priority or preference; and these rights may be determined as easily and completely where the mortgagees are co-plaintiffs as where but one institutes the suit, making his co-mortgagees defendants. 27 Cyc. 1644. The con*371sent to join as plaintiffs necessarily waives any issue or right to claim adversely to each other. The date of and time when the notes were due are the same as to each, the amounts alone differing, leaving them to share pro rata, and interested not adversely, but pro rata in the only subject of the suit giving the court jurisdiction. We think the statute obviously intended that the co-mortgagees should be made defendants only where they refuse to join as plaintiffs. For a clear, able, and full discussion of the foregoing principles, in which the same conclusion is reached as above, see Guthrie v. Treat, 66 Neb. 415 (92 N. W. 595: 103 Am. St. Rep. 718).
7. It is next argued that under Section 5339, B. & C. Comp., a deficiency judgment cannot be recovered against the defendant. This section of the Code provides:
“No mortgage shall be construed as implying a covenant for the payment of the sum thereby intended to be secured; and when there shall be no express covenant for such payment contained in the mortgage, and no bond or other separate instrument to secure such payment shall have been given, the remedies of the mortgagee shall be confined to the lands mentioned in the mortgage.”
Appellant’s contention on this point is based upon the assumption that there is no express covenant contained in the mortgage for the payment of the debt. This assumption, however, overlooks the fact that the mortgage was given to secure the payment of promissory notes, such notes containing an express agreement to pay the sums specified therein, with interest. It appears from the complaint that the notes constituted a part of the mortgage, from which it necessarily follows they become express covenants for the payment of the debt, and are within the section of the statute quoted. 27 Cyc.1746.
Counsel cites Myer v. Beal, 5 Or. 130, and Kramer v. Wilson, 49 Or. 333 (90 Pac. 183), in support of their contention. In the first case mentioned a promissory *372note was contained in the mortgage 'against which note the statute of limitations had run; and, no covenants being in the mortgage for the payment of the debt, it was held that a deficiency judgment could not be decreed against the defendant. The distinction, therefore, between that case and the one in hand is obvious. In the latter case a note, together with a deed, was executed. The deed was held to have been intended as a mortgage and foreclosure decreed, but held on appeal that no deficiency judgment could be entered therein, for the reason that the note expressly limited the promise to pay the debt to such proceeds as might arise from the sale of the property described in the deed; thus very materially differing in the facts, and in legal effect, from the case at bar.
The petition is denied.
Affirmed: Rehearing Denied.