Page:Federal Reporter, 1st Series, Volume 3.djvu/390

 UEBSMAN V. WESBOES. 888 �collateral and conditional liability would be changed into a direct and absolute liability. �Again, as the contract was, in f act, made, Mrs. Wergea was a Burety for her husband. She pledged her property, without consideration to her, for his debt. If we set aside and disre- gard the note, and proceed upon the debt and mortgage di- rectly, she becomes a joint debtor with her husband upon the face of the contract of mortgage. She is a joint obligor with her husband, and in order to entitle herself to any of the rights of a surety she must resort to paroi evidence, showing her true relation to the debt. In a word, by setting aside the note, to which the mortgage was a mere incident, and treat- ing the mortgage as the evidence of indebtednesg, we change the position of Mrs. Werges upon the face of the written con- tract from that of a surety, which she was, to thatof a princi- pal debtor, which she was not. Again, the debt was, in fact, not that of her husband individually. It was the debt of the firm. By charging her direotly upon the mortgage, mak- ing the debt, not; the note, the basis of her liability, she becomes the surety not of her husband, which she in fact was, but the surety of the firm of Kreuger & Werges, which she in truth was not. �Lastly, if we reject the note and count exclusively upon the mortgage, the jurisdiction here clearly fails. The mortgage was not a negotiable instrument; it was given to Kreuger in his name, and by him assigned by delivery to the complain- ant. Kreuger could not have sued these defendants in this com-t upon the mortgage, being himself a citizen of lowa. Therefore, his assignee, the complainant, cannot maintain an action here. The complainant is clearly within the prohibi- tion of the judicial act, and the amendatory act of 1875. Sea^ Sheldon t. Sell, 8 How. 441, 449. ����