(211 P.) "peculiarly" under "the application of the principle that the injury itself is evidence of negligence." This is well stated in a note in 1 L. R. A. (N. S.) 596, as follows: "The persistence with which water will seek its level renders the artificial accumulation of it above the ordinary level of the surrounding country more or less dangerous, according to the quantity of water accumulated and the susceptibility of adjoining property to injury in case of its escape. The result is that there has been some tendency on the part of the courts, as represented in the case of Rylands v. Fletcher, L. R. 3, H. L. 330, 37 L. J. Exch. (N. S.) 161, 19 L. T. (N. S.) 220, to hold one who accumulates water in large quantities as an insurer. On the other hand, water may be accumulated in small quantites without material danger to adjoining property. At the same time, the very facts that that is so, and that ordinary precaution will prevent injury from the accumulated water, render the case peculiarly one for the application of the principle that the injury itself is evidence of negligence." It will be noted in the decisions of our own state that the old maxim, "So use your own as not to injure another's property," has been so often approved in cases similar to the one at bar, and such cases have been de cided by this maxim so many times, that the maxim should be decisive of this case. "The law," says Chief Justice Parker in Thurston v. Hancock, 12 Mass. 220, 7 Am. Dec. 57, "founded upon principles of reason and common utility, has admitted a qualification to" the absolute dominion of the proprietor of lands over it, restricting him "so to use his own as not to injure the property or impair any actual existing rights of another." Under the subject of Nuisances, Judge Cooley, in his work on Torts, says: un Section 3479 of the Civil Code of the state of California declares, among other things, that "an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property," is a nuisance. In the case of Paolini v. Fresno Canal, etc., Co., 9 Cal. App. at page 8, 97 Pac. at page 1130, it is said: "There may be as direct damage by this and the law will as readily redress injury remeans as by overflowing the banks of a ditch, sulting from the one cause as by the other when the facts satisfactorily locate the cause. The case of Shields v. Orr Extension Ditch Co., 23 Nev. 349, 47 Pac. 194, is illustrative of the principle, and was a case where the injury was caused wholly by percolating water coming from a ditch. So, also, is the case of Parker v. Larsen, 86 Cal. 236, 21 Am. St. Rep. 30, 24 Pac. 989. It was there said, 'Where one brings a foreign substance on his land he must take care of it, and not permit it to injure his neighbor. The law on the subject is tersely expressed in the maxim, "Sic utere tuo ut alienum non laedas." (Italics ours.) The foregoing case fully approves the doctrine declared in the case of Parker v. Larsen, supra. The case of Parker v. Larsen, supra, was not predicated upon a finding of negligence in so many words, as an examination of the original record will reveal, but there was a finding of damage. Speaking of this case in Sutliff v. Sweetwater Water Co., 182 Cal. 37, 186 Pac. 767, the court, speaking through Mr. Justice Olney, says: "The case was one coming directly within the maxim, 'Sic utere tuo ut alienum non lædas.' Of this character, also, is Parker v. Larsen, 86 Cal. 236, 21 Am. St. Rep. 30, 24 Pac. 989, where the defendant permitted the water in a ditch which he had constructed on his land to percolate through the ground from the ditch on to his neighbor's land, saturating and The case of Parker v. Larsen is cited with approval in Mallett v. Taylor, 78 Or. 208, 152 Pac. 873. The syllabus of the Oregon case declares: "If the water is so raised that by percola-injuring it." tion the land of another is injured, the party raising it is responsible, not because he has unreasonably, negligently, intentionally, or expectedly flowed the land of another for his own benefit, but because he has done it in fact. The right of one to be secure against the undermining of his buildings by water, or the destruction of his crops, or the poisoning of the air by the stealthy attacks of an unseen element, is as complete as his right to be protected against open personal assaults or the more demonstrative but not more destructive, trespass of animals." causes "A person who by artificial means water to percolate through the soil to the injury of his neighbor, does so at his peril, and is legally responsible therefor irrespective of negligence." (Italics ours.) The conditions denounced by our Supreme Court in Parker v. Larsen, supra, while iden See, also, Pixley v. Clark, 35 N. Y. 520, tical with the case here on principle, were 91 Am. Dec. 81. Wood on Nuisances says: "The thing done or maintained may be injurious to property, and affect the free use of it, and in that way be a nuisance." much less aggravated and damaging than are those of the case under consideration; there the water was permitted to stand "two or three times each summer," whereas in this case it is allowed to stand continuously part of the spring, all of the summer, and part It is stated in Cyc., under the head of of the autumn season. Nuisances: "Every enjoyment by one of his own property which violates the rights of another in an essential degree, constitutes a nuisance." Other decisions bearing upon the question are: Howell v. Big Horn Basin Colonization Co., 14 Wyo. 14, 81 Pac. 785, 1 L. R. A. (N. S.) 596; Reed v State, 108 N. Y. 407, 15 N. E. 735; Scott v. Longwell, 139 Mich. 12, 102 N. W. 230, 5 Ann. Cas. 679; Gorham v. Gross, 125 Mass. 232, 28 Am. Rep. 226; Pixley v. Clark, 35 N. Y. 520, 91' Am. Dec. 72; Richardson v. Kier, 34 Cal. 63, 91 Am. Dec. 681; Tormey v. Anderson-Cottonwood Irrigation District (Cal. App.) 200 Pac. 814; Galbreath v. Hopkins, 159 Cal. 297, 113 Pac. 174; Hoffman v. Tuolumne County Water Co., 10 Cal. 416; North Point Consolidated Irrigation Co. v. Utah & Salt Lake Canal Co., 16 Utah, 246, 52 Pac. 168, 40 L. R. A. 851, 67 Am. St. Rep. 607; Wilson v. New Bedford, 108 Mass. It follows that the judgment should be affirmed, and it is so ordered. We concur: FINCH, P. J.; BURNETT, J. BATEMAN v. KELLOGG et al. (Civ. 3854.) (District Court of Appeal, Second District, Division 2, California. Oct. 24, 1922.) 261, 11 Am. Rep. 352; Sylvester v. Jerome, Appeal and error 870(6)—Order granting new trial not reviewable on appeal from second judgment. 19 Colo. 128, 34 Pac. 760; Esson v. Wattier, "The defendants' counsel says that the de- "The other proposition is very similar. Was it ever held or pretended that you might build a dam and flow another's land provided you were guilty of no want of care or skill in its construction? In fact, the better dam you make, the more skillful and perfect its construction, the more water you restrain and throw back, the greater the damage to the adjoining landowner. These are sound maxims, applied to many cases, but not to all. The ter may be admitted and applied here. The act of the defendants was lawful in building their dam so long as they did not injure their neighbor's land; the moment they so interfered by An order granting a new trial after judgment, thereby vacating that judgment, is not reviewable on appeal from the second judgment. 2. Execution 268-Purchaser receives legal title subject to incumbrances. When property is sold to judgment creditor at sheriff's sale under his judgment, he receives the legal title to the property subject to prior mortgages and prior judgment liens and subject to be defeated by a redemption under Code Civ. Proc. § 700. 3. Execution 264, 319-Purchaser acquires legal title of judgment debtor; sheriff's deed does not create new title. Purchaser under execution sale acquires the legal title of the judgment debtor defeasible upon condition subsequent, and the effect of the sheriff's deed is not to create a new title, but is merely evidence that the title of the purchaser has become absolute under Code Civ. Proc. § 700. 4. Execution 353-Lien satisfied by sale of land under execution. der execution for the full amount of the judgWhen land is sold to judgment creditor unment, the lien created by the levy is thereby extinguished. 5. Mortgages 594(4)-"Redemptioner" and "successor in interest" defined and distinguished. A "redemptioner," as that word is used in Code Civ. Proc. § 701 et seq., is a creditor having a lien by judgment or mortgage on the property sold subsequent to that on which the property was sold, and a judgment creditor purchasing under a judgment antedating the mortgage was not a redemptioner, but was, a lat-"successor in interest" of the judgment debtor, and entitled to redeem under subdivision 1 of section 701. [Ed. Note.-For other definitions, see Words their dam as to flow his land to his injury, the and Phrases, First and Second Series, Redemp act was unlawful." We are of the opinion that to permit the defendant to make his lands profitable though it result in the utter destruction of the usefulness of plaintiff's lands, would violate every principle of natural right and justice, and cannot be supported by judicial authority. tioner; Successor in Interest.] under execution gave him the title of the judg- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (211 P.) Effect of foreclosure | power of sale, but a trust deed is not a mortgage, and does not create a lien, and a purchaser at trustee's sale takes the title subject to all prior rights, interests, liens, and titles. Subject to right of redemption, the effect of a foreclosure sale is of itself to extinguish the right and claim of all the defendants in the action acquired subsequent to the date of the mortgage, and to vest in the purchaser the title of the mortgagor at the date of the mortgage discharged of all such right and claim. 9. Mortgages 608-Purchaser at foreclosure estopped to deny validity of redemption. If the person from whom redemption is made after mortgage foreclosure sale consents and accepts payment of the redemption money, it is as to him a valid redemption, even though the person making it be not qualified to redeem, upon principles of estoppel. 10. Estoppel ~68 (3)-Parties asserting validity of mortgage redemption as basis of claim estopped to deny validity. No party to an action to quiet title can be heard to question the validity of a redemption under mortgage foreclosure where each is asserting its validity as the basis of his claim of title. II. Execution 302-Effect of redemption from execution sale. One who redeems from an execution sale as a "redemptioner" under Code Civ. Proc. § 701, subd. 2, succeeds to the interests of the purchaser at the execution sale as fully as if he had purchased the certificate of sale, and if lienors, whether by judgment or mortgage, redeem, the course of the sale is not thereby impeded or precluded, but finally culminates in a deed to the redemptioner, who will succeed to all the rights which the purchaser at the execution sale would have possessed had no redemption been made. 12. Mortgages 594(1)—"Judgment debtor" in statute relating to redemption from judicial sale held to include "successor in interest." Purchaser under 14. Mortgages 624 (2) trust deed not a "redemptioner" under statute. Purchaser at trustee's sale under a trust deed was not a "redemptioner" as that word is used in Code Civ. Proc. § 701, subd. 2, but became by the purchase only the "successor in interest" of the judgment debtors so far as there remained in the latter any interest subsequent to the sheriff's sale under a prior judgment, and his redemption extinguished mortgage foreclosure sale under a mortgage antedating the judgment and restored the title under section 703. 15. Mortgages 596, 597-Failure of purchaser at sale under judgment to redeem from mortgage foreclosure did not forfeit right. Where land was sold to judgment creditor at sheriff's sale, and thereafter a prior mortgage was foreclosed, the purchaser under the judgment did not lose his right of redemption and forfeit his interest in the land by failing to redeem the property and permitting another to redeem who was not a "redemptioner," but a "successor in interest" under Code Civ. Proc. §§ 701, 703. 16. Mortgages 594 (1) Judgment debtor may redeem, though estate has been transferred to another. A judgment debtor named in mortgage foreclosure decree had the right to redeem from the foreclosure sale, even though a judgment creditor had succeeded to all of his title to the premises at a sheriff's sale under the judgment. 17. Equity 66-"Successor in interest" redeeming entitled to return of money paid, on owner of legal title bringing suit to quiet title under maxim that he who seeks equity must do equity. Where the effect of "successor in interest's" redemption from mortgage foreclosure sale was to revest a purchaser at a sheriff's sale under a judgment with the legal title so that he could successfully maintain a suit to quiet title, still, in seeking equity, the purchaser under the judgment must do equity and pay to the "successor in interest" the amount paid by him to redeem the property from mort While the words "successor in interest" are mentioned in Code of Civil Procedure, 8 701, and the succeeding sections refer exclusively to the judgment debtor and to redemp-gage foreclosure sale. tioners, still, when in these succeeding sections the Code uses the term "judgment debtor" as contradistinguished from "redemptioners," the words must be construed broadly enough to include "successors in interest" of the judgment debtor. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Judgment Debtor.] 13. Mortgages 372(2) mortgage distinguished. 18. Mortgages 594(4)-Decree in mortgage foreclosure sale held not to bar right of prior purchaser under judgment to legal title on redemption by "successor in interest." A decree in mortgage foreclosure that purchaser under judgment had a "lien" against the property "by reason of a certain sheriff's certificate of sale," etc., held not to establish the fact that plaintiff was the holder of a judgTrust deed and ment lien only which was foreclosed by such decree, in view of pleadings and issues, in a subsequent suit to quiet title as against a "successor in interest" of the mortgagor who redeemed from the mortgage foreclosure sale. The result of the enforcement of a trust deed may be for all practical purposes the same as the enforcement of a mortgage with For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 19. Judgment 728-Incidental questions not (aside and the first judgment reinstated and concluded by judgment. A question which is only incidentally involved and which is not actually litigated-that is, made the subject of trial and pressed upon the consideration of the court-is not concluded by the judgment so as to be res adjudicata in a subsequent suit on a different cause of action. 20. Execution 241-Property held sufficiently described in notice and certificate. Sale of land under execution was valid though two calls were omitted from the description of the property in the sheriff's certificate of sale and in the notices of the sale where the description given was sufficient to identify the land. 21. Execution 312-Sufficiency of description of land sold. A description which would be sufficient for a voluntary conveyance of land sufficed for a conveyance by the sheriff after an execution sale. 22. Execution 310-Error In date of sheriff's deed held not fatal to purchaser's claim of title. Error in the date of sheriff's deed was not fatal to purchaser's claim of title, as the recording of the sheriff's certificate of sale was alone sufficient to charge all subsequent purchasers with notice of purchaser's rights, in view of Code Civ. Proc. § 700a, and Pol. Code, § 4159. affirmed. That, however, is not a question which may be considered on this appeal. For the reasons set forth in Furlow Pressed Brick Co. v. Balboa L. & W. Co., 186 Cal. 754, 200 Pac. 625, the order granting a new trial after the first judgment, thereby vacating that judgment, is not reviewable on this appeal from the second judgment. See, also, Schomaker v. Roemer (Cal. App.) 201 Pac. 803. On the second trial the court found that plaintiff is not the owner of or entitled to the possession of the real property in controversy, and that it is not true that defendants, who are in possession, are without right or title to the land. The alleged insufficiency of the evidence to support these findings is the sole contention made by appellant with respect to the result of that trial. Both The facts shown on the second trial, in so far as they are necessary to an understanding of the questions presented by this appeal, are substantially as follows: sides claim through L. A. Walker and Mary J. Walker, husband and wife, as the common source of title. It was stipulated that the Walkers owned the property on June 5, 1912. On that date they executed a mortgage to Walter P. Temple. This mortgage, by two assignments, was finally held by John L. Boals. On March 8, 1915, Boals commenced a foreclosure action, and on the same Appeal from Superior Court, Los Angeles day caused a notice of lis pendens to be filed County; John W. Shenk, Judge. Action by C. W. Bateman against Fred R. Kellogg and others. From an adverse judgment, plaintiff appeals. Reversed. in the office of the county recorder. On June 6, 1912, the Walkers executed to Catherine Seccombe, as trustee, a deed of trust covering the same property. On April Turner & Grainger, of Los Angeles, for ap- 11, 1914, a sale was had under this deed of pellant. Robert M. Clarke and Henry L. Knoop, both of Los Angeles, for respondents. trust, and on September 14, 1914, the purchaser at that sale reconveyed the property to L. A. Walker. On the day that this reconveyance was made to Walker, appellant, as will hereafter appear, acquired a judgment lien on the property. By the recon FINLAYSON, P. J. This is an appeal by plaintiff from a judgment in favor of defendants in an action to quiet title to a par-veyance to L. A. Walker the whole title was cel of land in Los Angeles county. vested in him, subject only to the mortgage [1] There were two trials of the case. which he and his wife had given to Temple, Upon the first, which was without a jury, and subject also to appellant's judgment lien findings on all the material issues were made and to a judgment lien in favor of the Grange in favor of plaintiff, and the court gave Company-the next-mentioned incumbrance. judgment for plaintiff accordingly. There- In other words, Mary J. Walker ceased to after an order was made granting defend- have any interest in the land after its sale ants' motion for a new trial. The order, under the Seccombe deed of trust and the which was general in its terms, reopened the reconveyance to her husband. case for a new trial on all the issues. A re- Following the Temple mortgage, in point trial was had, at the conclusion of which of time, was the lien of a judgment of a the court rendered and entered its judgment justice's court in favor of the Grange Comin favor of defendants. It is from that judg-pany against L. A. Walker. That judgment ment that plaintiff now appeals. One of the points urged by plaintiff upon this appeal is that the trial court erred in making its order granting defendants' motion for a new trial after the first judgment in the case, and that therefore that order should be set became a lien on the property on February 21, 1914, on which day an abstract of the judgment was recorded in the office of the county recorder. Subsequently this judgment was assigned to F. G. Stickney. Next in point of time was the lien of C. W. For other cases see same topic and KEY-NUMBER in all Kev-Numbered Digests and Indexes (211 P.) Bateman, the plaintiff and appellant in the | the justice's court against L. A. Walker, he present action. His was the lien of a judg-acquired a lien on the land, and that on May ment for $103.75 which, on September 3, 3, 1915, he purchased the premises at sher1914, was rendered by the justice's court iff's sale under the writ of execution issued of Los Nietos township in favor of Bateman | on his judgment against Walker. He prayed and against L. A. Walker, and an abstract that the court, in its decree foreclosing the thereof was recorded September 14, 1914, in mortgage, fix the manner of the distribution the office of the county recorder. On the of the proceeds from the foreclosure sale, day when this judgment became a lien on the and that such proceeds, after their applicaproperty, the legal title, as has been shown, tion to the expenses of the sale, be applied was in L. A. Walker, subject only to the to the payment of the prior liens against Temple mortgage and the Grange Company's the property, and that he receive from the judgment lien. Execution was issued on residue, if any should remain, the amount appellant's judgment against Walker, and necessary to redeem the property from the on March 9, 1915, which was the day follow-sale which the sheriff had made to him on ing the commencement of the action by Boals May 3, 1915. to foreclose the Temple mortgage, appellant caused the writ of execution to be levied by the sheriff of Los Angeles county on the property in controversy. On May 3, 1915, the property was sold to appellant at sher iff's sale for $135.35, and a sheriff's certificate of sale was issued to him. It is under this execution sale that appellant claims title to the land. On May 4, 1916, appellant received a sheriff's deed to the property. In its decree foreclosing the Temple mortgage the court, after declaring that the Walkers owed Boals $3,387.01, secured by the mortgage, and that Bateman had a lien for $144.40 subject to the Temple mortgage and to the judgment lien held by Stickney, decreed that the property be sold, and that after paying all the costs incidental to the sale the proceeds be applied: (1) To the satisfaction of the Temple mortgage; (2) to the satisfaction of the Stickney lien, if there should be any surplus available therefor; and (3) if there still remained a surplus, that it be paid to Bateman to the amount of his justice's judgment and costs. On February 1, 1916, the property was sold by the sheriff to Stickney under the decree foreclosing the Temple mortgage. Stick Next in point of time succeeding the accrual of appellant's judgment lien was a trust deed to L. O. Hatch, as trustee. That instrument, executed by the Walkers on October 16, 1914, was given to secure an indebt. edness of L. A. Walker to George H. Woodruff, named as the beneficiary in the trust deed. On August 18, 1915, the trustee in this deed of trust caused the premises to be soldney paid a sum sufficient to satisfy the judgto Woodruff to satisfy L. A. Walker's obligation to him. It is under this deed of trust and the trustee's sale thereunder to Woodruff, and the latter's redemption from the sale which was had under the decree fore closing the Temple mortgage, that respondents make their claim of title. As will be noticed, when Boals commenced his action on March 8, 1915, to foreclose the Temple mortgage, Bateman, the appellant here, had not caused execution to be issued on his judgment against Walker, nor had the sale to Woodruff been made by Hatch under the deed of trust which the Walkers had executed to secure L. A. Walker's indebtedness to Woodruff. Among the defendants in the action by Boals to foreclose the Temple mortgage were the mortgagors, Mr. and Mrs. Walker, Bateman (the plaintiff and appellant here), Woodruff (under whom respondents claim title), L. O. Hatch (the trustee in the trust deed given for the benefit of Woodruff), and the Grange Company; the assignment of its judgment to Stickney not having been made when the foreclosure action was commenced. Later Stickney appeared as a defendant, substituted for one of the fictitious defendants. Bateman filed an answer in the mortgage foreclosure action. He alleged in his answer in that action that, by recording the abstract of the judgment which he had obtained in 211 P.-4 ment of the Grange Company against L. A. Walker, as well as the amount decreed to be due to Boals under the mortgage. On February 1, 1917, Woodruff, who, it will be recalled, had purchased the property at the trustee's sale which was had under the Walkers' deed of trust to L. O. Hatch, redeemed the property from Stickney by paying to the sheriff the sum of $4,212.35, that sum being in full payment of the purchase price which had been paid by Stickney as the purchaser at the foreclosure sale on February 1, 1916, together with interest at the rate of 1 per cent. per month to the time of redemption. No one redeemed from Woodruff, and the sheriff, on April 6, 1917, executed a deed to him. Thereafter Woodruff conveyed the property to one Birch, who later conveyed it to the defendants Kellogg, McCray, and McBurney. The defendant Montgomery is a lessee of his codefendants. Appellant's argument may be summarized substantially as follows: The lien of appellant's judgment against L. A. Walker antedated the trust deed which had been given by the Walkers to Hatch to secure L. A. Walker's indebtedness to Woodruff. Mrs. Walker had ceased to have any interest in the land after April 11, 1914, on which day it was sold under the trust deed which she and her husband had executed to Catherine |