¶1 (dissenting). This is an action brought by some 30 named plaintiffs “for themselves and for all others similarly interested” to recover several separate and individual judgments against the de *288 fendants. The complaint sets forth the execution of a trust deed on certain real property for the purpose of securing 90 negotiable bonds all of which were sold to individuals but only 18 were paid. The defendants who executed the bonds and trust deed defaulted. The defendants and the trustee under the trust deed then entered into an agreement, a copy of which is attached to the complaint as a part thereof whereby it was agreed that the property should be foreclosed upon and certain payments made and things done by the defendants for the benefit of the plaintiffs. This agreement provided:
“It is further specifically understood and agreed that this agreement shall not be construed to release first parties, their heirs, legatees, executors or administrators from their joint and several personal obligations to second party as trustee, or its successor in trust, and the owners of the bonds now outstanding under the Trust Deed of July 20, 1928, their heirs or assigns, and that if there is any breach of this agreement by first parties, or of the new mortgage and trust deed to be given as herein provided, second party, as trustee, or its successor in trust, or any individual bondholder, his heirs or assigns, shall be privileged to thereupon proceed personally against first parties, or any of them, their administrators, or executors, as though this agreement had not been made.”
¶2 The complaint then alleges that the defendants breached the agreement and refused to perform their obligations thereunder and that the bonds numbered 19 to 90 inclusive in the amount of $500 each are past due and:
“That the owners of Bonds 19 to 90, (except Nos. 37, 41, 54, 80, 89 and 90) are thirty-nine or more in number and are scattered over the United States and it is impracticable to bring them all into court, that each bond holder’s interest is identical and common except that some own more than one bond, so this action is brought upon the direction and sanction of the bond holders committee by the plaintiffs named, for their benefit and for the benefit of all the bond holders, and each offers, upon payment of the bond or bonds owned by them, with interest, or any judgment herein rendered for such principal and interest to assign or convey their interest in the real property now owned by Alan Williamson, Trustee.”
¶3*289 The question before us is whether the plaintiffs may properly join in this action, the causes of action pleaded.
¶4 Section 7403, N. D. Comp. Laws 1913 provides:
“All persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs except as otherwise provided in this chapter.”
¶5 In Pomeroy’s Code Remedies, § 200, we find this statutory provision discussed in the following language:
“Persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs in all actions, whatever be their nature, although the rights of such persons are legally several, and although at the common law they would be required to institute separate actions; or, in other words, the plain import of the legislation — its language not being confined to any class of suits — is to enlarge the number of cases in which persons may be joined as co-plaintiffs, and to place legal actions in this respect upon exactly the same footing as those which are equitable in their nature.”
¶6 From both our statute and the quotation from Pomeroy it appears that in order for two or more plaintiffs to join in an action two things are required. All persons thus joined must have (1) an interest in the subject matter of the action (2) an interest in the relief demanded. If both elements are present, the plaintiffs may join although their rights are legally several.
¶7 “But, to justify joining parties as plaintiffs in an action, there must be some community of interest in the particular claim pressed for adjudication, and some common benefit or advantage in the relief sought. As observed in Martin v. Davis, 82 Ind 38: ‘To entitle two or more persons to join as plaintiffs, it is not sufficient that they each have a cause of action arising out of the same transaction or matter, if the relief sought by each be distinct and unconnected. The plaintiffs must have a common interest in the subject of the action and in the relief. Each must be interested in the relief sought by the other.’ ” Miller v. Hawkeye Gold Dredging Co. 156 Iowa 557, 137 NW 507. See also Bates, Pleading, Practice Parties & Forms, 4th ed § 64.
¶8 The majority opinion takes the view that the pleading of the agreement made between the defendants and the trustee, which all bondhold *290 ers approved, constitutes the subject of the action or at least an important part thereof and being common to all of the plaintiffs, is sufficient ground for sustaining a joinder. With this conclusion, I am unable to agree. The basis of this action as pleaded in the complaint is the bonds held by the individual plaintiffs. The agreement from which we have quoted specifically provides that in event of its breach the bondholders would be privileged to proceed personally against the defendants as though the agreement had not been made. It is the evident theory of the complaint that since the agreement was breached the plaintiffs were proceeding in accordance with that provision. This construction is borne out by the relief sought which is an individual judgment in favor of each plaintiff named and also in favor of each of the other bondholders upon their becoming active plaintiffs in the suit before judgment or upon later application. No common relief is sought. The relief demanded springs from the bonds and not the agreement and being individual in its nature the plaintiffs do not qualify in either of the two respects required by § 7403, supra. They do not have a common interest in either the subject of the action or in the relief demanded.
¶9 The demurrer does not present a question of misjoinder of parties plaintiff. Olson v. Shirley, 12 ND 106, 96 NW 297; Bruffarts v. Ober, 48 ND 997, 188 NW 174. However, the foregoing discussion bears upon the application of § 7466, N. D. Comp. Laws 1913 to the complaint involved in this case. This section provides that:
“The plaintiff may unite in the same complaint several causes of action, whether they are such as have been heretofore denominated legal or equitable, or both, where they all arise out of:
1. The same transaction, or transactions connected with the same subject of action; or
2. Contract, express or implied; or “. . . But the causes of action so united must all belong to one of these classes and, except in actions for the foreclosure of mortgages, must affect all the parties to the action, and not require different places of trial, and must be separately stated.”
¶10 The causes of action that may be joined under the statute must not only fall within the several specific categories therein set forth but each *291 cause of action must affect all of the parties. In this case each cause of action affects one plaintiff and both defendants but does not affect the other plaintiffs named or unnamed.
¶11 "The general rule requiring that all causes joined affect all the parties is applicable under the code practice. It is a prerequisite, even in the code states, to the joinder of causes of action that all causes should affect all parties to the action, both parties defendant and parties plaintiff. In fact, most of the codes in terms require, that the different causes of action united, except as otherwise provided, 'must affect all the parties to the action.’ Under such provisions, causes of action against the same defendant which affect the several plaintiffs separately and distinctly, even though they may have arisen out of the same transaction or relate to the same subject-matter, cannot be joined.” 1 Am Jur 466, Actions, § 19.
¶12 This court has construed the Code of Civil Procedure with prodigious though meritorious liberality. In carrying out that policy we must endeavor to keep the judicial house in order. To that end the legislature has wisely enjoined that except in actions for foreclosure of mortgages, causes of action to be joined must affect all of the parties to the action. The complaint violates that injunction. The demurrer should have been sustained.
¶13 (dissenting). I agree with the views expressed by Chief Justice Morris, but am constrained to make the following comment:
¶14 The complaint alleges that on or about July 20, 1928 the above named defendants executed and delivered ninety notes or bonds, each in the amount of five hundred dollars, or forty-five thousand dollars in all; that to secure the payment of such notes or bonds they executed and delivered a trust deed on certain real property. A copy of sucü bond or promissory note is attached to and made a part of the complaint. Such bond contains an unconditional promise by the makers thereof to pay a certain sum of money, at a fixed future time to bearer, or the registered owner of the bond. The bond contains among others the following provision: "The liability of the undersigned hereon shall under all circumstances whatsoever, continue in its original force *292 until the principal and interest are paid in full.” All the bonds were sold for value to a number of individuals. Eighteen of the bonds were paid, and on January 6, 1938, seventy-two of the bonds remained outstanding, on which, interest payments were in default — interest being due thereon from and after August 1, 1936.
¶15 On January 6, 1938 the defendants, the makers of the bonds, and the trustee named in the trust deed entered into the written agreement, referred to in the majority opinion and also in the dissenting opinion of the Chief Justice, a copy of which agreement is attached to and made a part of the complaint.
¶16 The agreement provided that upon approval thereof by the owners of the bonds, the trustee should proceed with the foreclosure of the trust deed, and that all the expense of the foreclosure, with the exception of seventy-five dollars, should be paid by the defendants. It further provided that a portion of the past due interest and certain taxes should be paid by the trustee from moneys in its possession that ha.d been received as rental, and that if the funds in the trustee’s hands were not sufficient to enable the trustee to make such payments, that then the makers of the bonds would pay to the trustee the additional amount required. It further provided that if and when sheriff’s deed was issued to the trustee on foreclosure, the makers of the bonds would pay any taxes remaining due and unpaid and all back interest at the late of four per cent per annum, .and that the trustee would then transfer the real property to the makers of the bonds (the defendants) “or the survivors of them then living,” and that the said makers of the bonds would thereupon make and execute to the trustee, or to such other trustee as the.majority of the bonds outstanding under the trust deed should select, “their joint and several obligation, in amount $36,-'000.00, in units or bonds of $500.00 each, secured by a mortgage •on the property herein described.”
¶17 • The agreement also contained the provision quoted in the dissenting •opinion of the Chief Justice, whereby it was specifically stipulated that the agreement should not be construed to release the makers of the bonds, their heirs, legatees, executors, or administrators from their joint and several personal obligations to the owners of the bonds then outstanding under the trust deed of July 20, 1928, and “that if there *293 is any breach of this agreement by first parties or of the new mortgage and trust deed to be given as herein provided, . . . any individual bondholder, his heirs or assigns, shall be privileged to thereupon proceed personally against first parties, or any of them, their administrators, or executors, as though this agreement had not been made.”
¶18 It is alleged that the defendants breached the agreement and refused to perform their obligations thereunder, and that all the bonds, numbered 19 to 90 inclusive, each in the amount of $500.00, are past due,’ and that “there is now due on each bond the sum of $500.00, with interest, etc.” The agreement of January 6, 1938, does not provide for surrender of the bonds issued in 1928 by the holders of such bonds, and the acceptance of new bonds in exchange and discharge thereof. It was clearly the understanding of the parties to the agreement that the holders of the then outstanding bonds should retain such bonds notwithstanding the issuance of new bonds, as the agreement provides not only that the owner of any such bond shall have the right to proceed personally against the makers of such bond in case “there is any breach of this agreement by first parties” (the makers of the bonds), but that the owner of such bond shall have the right to so proceed and enforce the personal obligation of the makers “if there is any breach of . . . the new mortgage and trust deed to be given as herein provided.”
¶19 In this action there are 30 named plaintiffs, who according to the title of the action and the allegations of the complaint are suing “for themselves and for all others similarly interested.” According to the allegations of the complaint the 30 named plaintiffs are the owners of 49 of the bonds; five persons who owned six of the bonds have sold the same to the defendant, Stern; and the remaining seventeen bonds are owned by twelve persons, who are hot named as parties to the-action, and, hence, must be those whom the named plaintiffs intended to include in the designation “all others similarly interested.”
¶20 The complaint obviously sets forth facts showing a cause of action in favor of each of the named plaintiffs and against the' defendants. The holder of each bond has a separate cause of action upon the personal obligation of the makers. Such cause of action is in no manner affected by the cause of action of the owner of some other bond. The *294 amount payable by the makers of the bonds pursuant to tbeir personal obligation to the owner of one bond is in no way dependent upon what is due from them upon their personal obligation to the owner of another bond. Each owner has a separate individual right against the makers upon the personal obligation to him. Kelley v. Gill, 245 US 116, 120, 62 L ed 185, 188, 38 S Ct 38, 40 Am Bankr Rep 421. There is no joint or common interest in the payment, which the makers of the bond have personally obligated themselves to make. Nahte v. Hanson, 106 Minn 365, 366, 119 NW 55.
¶21 A separate money judgment is demanded in favor of each plaintiff for the amount due from the defendants upon their personal obligation to such plaintiff. If judgments are obtained there will be no common interest in the judgments; each judgment will belong solely to the plaintiff who as owner of a particular bond or bonds is awarded recovery thereon.
¶22 There is not a suggestion that it is sought to enforce the written agreement of January 6, 1938 or to recover damages for breach thereof. The amount sought to be recovered by each plaintiff is the amount which it is alleged is due upon the bond or bonds owned by him. The trustee, who is one of the.parties to the agreement of January 6, 1938, is not even made a party to the action. No right or interest of the owner of any bond can be affected in any manner by the success or failure of the owner of any other bond. No right or interest of the owner of a bond can be affected by whether the owner of any other bond brings action to recover the amount due on the bond, or whether he brings action to recover damages for the breach of the agreement of January 6, 1938, or whether he brings action at all.
¶23 In my opinion our laws do not authorize joinder of actions such as has been attempted here. Section 7403, Comp. Laws 1913 limits the union of parties as plaintiffs' to those “having an interest in the subject of the action and in obtaining the relief demanded.” Under this section, “all who would unite must be interested in the subject of the action and in the relief.” Though one may be interested in the matter or thing concerning which the action is brought, “unless he is also interested in the relief which is sought by another, he is not permitted to unite with him.” Bliss, Code Pleading, 2d ed, § 76. Here *295 each plaintiff seeks separate and individual relief. As was well said by the Chief Justice in his dissenting opinion in this case: “No common relief is'sought. . . . They (plaintiffs) do not have a common interest in either the subject of the action or in the relief demanded.”
¶24 Section 7466, Comp. Laws 1913, (relating to Joinder of Actions), in harmony with § 7403, supra, provides that in order to be united in the same complaint, the causes so united “must affect all the parties to the action.”
¶25 Under this section, “separate causes of action against the same defendant in favor of several persons cannot be united, even though their causes of action arise out of the same transaction.” 14 Standard Enc. of Procedure, pp 677, 678; 1 Am Jur 466, Actions, § 79; Noroian v. Bennett, 179 Cal 806, 179 P 158; 1 CJS pp 1274 et seq.
¶26 The limitations on the joinder of actions prescribed by § 7466, supra, are not removed by the proviso in § 7406, Comp. Laws 1913, that “when the question is one of a common or general interest of many persons, or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.”
¶27 Said § 7406, supra, does not relate to joinder of causes of action; it relates to parties. It was not intended by this section to provide for the joinder in one action of separate causes of action owned by different plaintiffs against a common defendant. Brenner v. Title Guarantee & T. Co. 276 NY 230, 11 NE(2d) 890, 114 ALR. 1010; Pemberton v. Board of Education, 67 Ohio App 175, 36 NE(2d) 170. See also Rogers v. Boston Club, 205 Mass 261, 91 NE 321, 28 LRA(NS) 743; Burke v. Scheer, 89 Neb 80, 130 NW 962, 33 LRA(NS) 1057; Kelley v. Gill, 245 US 116, 62 L ed 185, 38 S Ct 38, 40 Am Bankr Rep 421; Van Auken v. Dammeier, 27 Or 150, 40 P 89.
¶28 The rule embodied in said § 7406, supra, “is in harmony with the requirement that all the parties plaintiff must have a joint or common interest, and the interest of the parties represented must appear to be such'as to entitle them, were they all before the court, to maintain the action in thir own names.” Bliss, Code Pleading, 2d ed p 121.
¶29 “The right which the suit is brought to assert must in some manner or degree belong to all who are represented by the actual plaintiff; and *296 all the persons who are represented by tbe actual defendant must have some interest adverse to the demand for relief set up by tbe action.” Pomeroy, Code Remedies, 5th ed, p 441.
¶30 As said in tbe majority opinion, § 7406, Comp. Laws 1913 was borrowed from New York. In construing and applying such provision in the Code of New York (Brenner v. Title Guarantee & T. Co. 276 NY 230, 18 NE(2d) 890, 114 ALR 1010, supra), the New York Court of Appeals said:
¶31 “Its purpose was not to provide for tbe joinder in one action of separate causes of action owned by different plaintiffs. Its purpose was rather to retain bn tbe new practice tbe same rules by wbicb to determine whether tbe proper parties were before tbe court, which then prevailed in tbe court of chancery.’ McKenzie v. L’Amoureaux (1851) 11 Barb. 516, 518. In those cases where it applied, one person may prosecute a cause of action or interpose a defense for tbe benefit of others, wbo are not parties to tbe action, but only where they might properly be joined as parties because they have a common or general interest or are united in interest.”
¶32 There is no common or general, or union of, interest on tbe part of tbe several plaintiffs in tbe several individual causes of action wbicb it is sought to unite in tbe complaint in this case.
¶33 As said, according to tbe allegations of tbe complaint tbe 30 named plaintiffs are tbe owners of 49 bonds. But they are not joint owners, they are several owners, each of bis own. Tbe cause of action in favor of tbe owner and against tbe makers of each of tbe several bonds upon tbe promise to pay is not joint, and does not belong to tbe owners of all tbe bonds. There is a separate written agreement to pay between tbe makers, and tbe owner, of each bond. Tbe owner of each bond has a cause of action for tbe breach of tbe personal obligation of tbe makers* and tbe owners of tbe other bonds have no interest therein. If tbe owner of a bond brings action against tbe makers of tbe bond for breach of their agreement to pay, tbe owners of other bonds will not be necessary parties to sucb suit.
¶34 Here 30 persons, owning separate and individual causes of action against two common defendants seek to join them in one action. There is no warrant under tbe laws of this state for sucb joinder.