fully paid and extinguished, and, together with the mortgage and the deed of trust, had ceased to be of any force. Regarding a purported sale to Spring on December 11, 1912, by L. W. Clark under and pursuant to the Galli trust deed of the north half of section 19, it was held that the trustee had no authority to make it. Among the conclusions of law was one to the effect that Spring's mortgage was prior to that of plaintiff on the northeast quarter of section 19. gages, yet, as he testified, he made no inquiry of the mortgagor respecting any personal assumption of the debt by Mr. Kjell man. [3] If the purchaser of an equity of redemption has assumed payment of the debt or has otherwise made himself personally liable for it, the payment of the debt will extinguish the mortgage, and he cannot take an assignment of it to himself. 27 Cyc. 1331. Section 1473 of the Civil Code provides that: "Full performance of an obligation, by the party whose duty it is to perform it, or by any other person on his behalf, and with his assent. if accepted by the creditor, extinguishes it." In the early case of Gordon v. Wansey, 21 Cal. 77, the facts were as follows: Certain Appellant insists that, since the record title was in O. J. Kjellman when the Galli and Wilson notes were transferred to him by William A. Kjellman, and since the deed from the Trauzettels merely recited that the property was "subject to" the Dodds' mort-negotiable promissory notes were assigned gage, he had no notice of William A. Kjellman's assumption of personal liability, and was therefore a purchaser in good faith of the Galli and Wilson notes and liens in the hands, not of the mortgagee, but of a third party. It is true that William A. Kjellman divested himself of title by a deed to O. J. Kjellman on January 5, 1011. The appellant insists that the purchase by William A. Kjellman of the Galli and Wilson incumbrances after he had parted with the title to the land did not work a merger. He admits that as between Mr. Kjellman and the Trauzettels an estoppel may apply, but insists that he had no notice (and could have none) of the personal assumption of the mortgage debt by William A. Kjellman in and by the terms of the unrecorded escrow agreement. [1] But the mere fact that the deed to Kjellman from the Trauzettels did not recite his personal liability would not relieve him from an assumption of such burden nor prevent equities against him from being asserted as against one who purchased notes after maturity and took assignments of the mortgage and the trust deed supporting said notes. The promise by the mortgagor's grantee personally to be answerable for the payment of the mortgage may appear and bind such grantee because of a clause in the deed or by a separate written instrument wihch need not be executed with the formalities necessary to a deed, and which, if preceding the execution of the deed of conveyance, is not so merged in the deed that the omission of the assumption clause from the latter instrument, will release the vendee from his prior covenant. [2] Indeed, the agreement may rest wholly in parol, and in such case is not within the statute of frauds. 27 Cyc., 1344"d"; Jones on Mortgages, § 748; Hopkins v. Warner, 109 Cal. 133, 41 Pac. 868. When appellant received assignments of the Galli and Wilson interests the notes were more than a year past due. He knew that his transferror had once owned the property subject to the mort before maturity to one of the makers and by him after maturity to the plaintiff. It was held that the transaction amounted to payment, and that the notes became functus officio and were not revived by the assignment to the plaintiff. In Yule v. Bishop, 133 Cal. 574, 62 Pac. 68, 65 Pac. 1094, the same principle is announced. [4] The full performance of an obligation by any one for the principal with his assent, if accepted by the creditor extinguishes the obligation. See, also, Crystal v. Hutton, 1 Cal. App. 251-256, 81 Pac. 1115; Bray v. Cohn, 7 Cal. App. 124, 93 Pac. 893. El The appellant therefore took the note long past due subject to all existing defenses. gin v. Hill, 27 Cal. 373-375; James v. Yaeger, 86 Cal. 184-188, 24 Pac. 1005; Adams v. Hopkins, 144 Cal. 19-34, 77 Pac. 712. No further assignments of error require discussion. The judgment is affirmed. (174 Cal. 409) CONNER v. BANK OF BAKERSFIELD. (L. A. 3859.) (Supreme Court of California. Feb. 13, 1917.) 1. BANKS AND BANKING 145 CERTIFICATION OF CHECK BY BANK-EFFECT. By certifying a check a bank becomes bound as a direct and original promisor to the payee, [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 419-433.] 2. BANKS AND BANKING 145 CERTIFIED CHECK-MEASURE OF DAMAGES. As the obligation of a bank on a check certified by it is one to pay money only, by the direct provision of Civ. Code, § 3302, the measure of damages for breach of such obligation is the amount due by the terms of the obligation with interest thereon. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 419-433.] 3. BANKS AND BANKING 155-ACTION ON CERTIFIED CHECK-PLEADING-COMPLAINTSUFFICIENCY. A complaint, alleging that a check payable to bearer and certified by defendant bank was presented by plaintiff to defendant and payment For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 163 P.-23 refused, stated a cause of action for recovery of [ C. C. Cowgill, of Sonoma, and Peter A. the face of the check, with interest from date of Breen, of San Francisco, for appellant. J. presentation, and the sufficiency of the complaint W. Wiley, of Bakersfield, for respondent. to state a cause of action was not impaired by the fact that plaintiff asked for more items of damage than are recoverable. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 536-538.] SLOSS, J. Plaintiff appeals from a judg ment entered upon the sustaining of the defendant's demurrer to the second amended complaint. The complaint in question alleged that on July 21, 1910, one Planz drew his check for $3,799.66 on the defendant, the Bank of Bakersfield, payable to "Kern Valley Bank or bearer." Negotiable paper, so drawn, is payable to the bearer. Civ. Code, § 3102. On the same day the check was certified by the defendant bank. On May 19, 1911, the plaintiff presented the check to the defend In interpleader, the only question that can be litigated between plaintiff and defendants is whether the plaintiff is entitled to compel the defendants to interplead with respect to their claims to the fund or debt alleged by plaintiff to be in his hands, or due from him, and defendant, but the defendant refused to pay the ants are entitled to aver and prove any facts to show that the plaintiff is not entitled to maintain his bill, but they cannot, by counterclaim or cross-complaint, seek affirmative relief against the plaintiff concerning matters not embraced within his bill. [Ed. Note.-For other cases, see Interpleader, Cent. Dig. §§ 72, 73.] 3. INTERPLEADer ANTS-EFFECT. 33—Consent of DefenD same, and it has never been paid to plaintiff. On July 20, 1911, the defendant bank commenced an action of interpleader against the plaintiff and Planz in which the plaintiff and Planz "were required to and did interplead together concerning their claims to the said check and to the said money called for thereby." Plaintiff and Planz appeared in said action, and thereafter the court rendered judgment therein in favor of the plaintiff that she, as executrix, was entitled to have paid to her the amount of said check. It is not alleged that this judgment has become final, and the action of interpleader is ap In interpleader by a bank, if defendants had appeared and consented to an interlocutory order, requiring them to interplead concerning their claims to a check certified by the bank, and to consequent dismissal of the bank, each of defendants might have been precluded from asserting that the bank was under any further lia-parently still pending. bility arising out of the check. [Ed. Note. For other cases, see Interpleader, tiff was compelled to employ counsel in said The complaint alleges, further, that plain Cent. Dig. §§ 68-71, 74.] 7. ABATEMENT AND REVIVAL 17-DEMURRER-ANOTHER ACTION PENDING. Under Code Civ. Proc. § 430, subd. 3, providing that a defendant may demur to the complaint when it appears on the face thereof that there is another action pending by the same parties for the same cause, in an action against a bank on a check certified by it, a plea of another action pending, relying upon an interpleador suit brought by the bank against this plainciff, and another not shown by the complaint to have raised the same issues, should have been raised by answer and a demurrer to the complaint on that ground, was not properly sustained. [Ed. Note.-For other cases, see Abatement and Revival, Cent. Dig. §§ 123–126; Pleading, Cent. Dig. § 427.] 8. PLEADING 111 ACTION PENDING. DEFENSES - ANOTHER The defense of another action pending does not authorize a judgment on the merits, but the only relief to which the defendant is entitled up on establishing such defense is a judgment that the action abate. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 234-236.] action, and to expend money for costs and traveling expenses, and has been deprived of the use of said sum of $3,799.66, and of interest thereon, from the 19th day of May, 1911. It is also alleged that the plaintiff has suffered general damages in the further sum of $2,350. The prayer is for judgment for interest on the amount of the check, together with the amount of the various other items of damage alleged. The demurrer specified as grounds: (1) That the complaint does not state facts sufficient to constitute a cause of action; and (2) that there is another action pending between the same parties for the same cause. This demurrer having been sustained withOut leave to amend, judgment was entered that the plaintiff take nothing by the action, and that the defendant recover from plaintiff its costs. [1] By certifying the check the bank beto the payee. 1 Morse on Banks and Banking came bound as a direct and original promisor (4th Ed.) § 414; 5 R. C. L. 523, 524. Department 1. Appeal from Superior Court, Kern County; J. W. Mahon, Judge. Action by Sarah L. Conner, executrix of the last will of C. L. Conner, deceased, against the Bank of Bakersfield. From a judgment sustaining defendant's demurrer to the complaint, plaintiff appeals. Reversed. See, also, 29 Cal. App. 153, 154 Pac. 869. [2] Its obligation was one "to pay money only," and the measure of damages for the breach of such obligation is "the amount due by the terms of the obligation, with interest thereon." Civ. Code, § 3302. [3] The complaint alleges that the check, payable to bearer was presented by plaintiff to the certifying bank, and payment refused. Clearly, therefore, the pleading stated a cause of action for the recovery of the face of the check, with interest from the date of presentation. The sufficiency of the complaint as stating a cause of action is, of course, not impaired by the fact that the plaintiff may have asked for more items of damage than are recoverable. such a suit is to have the action dismissed." Los Angeles v. Amidor, 140 Cal. 400, 73 Pac. 1049. asserting that the bank was under any further liability arising out of the check. S. F. Savings Union v. Long, 123 Cal. 107, 55 Pac. 708; Woodmen of the World v. Rutledge, 133 Cal. 640, 65 Pac. 1105. [6] It is entirely consistent with the allegations of the complaint in this case that the bank, in beginning the interpleader suit against this appellant and Planz, conceded no liability on its part beyond the principal [4] Nor was the demurrer properly sustain- sum of the check. If the defendants had ed upon the second ground specified. The come in and consented to an interlocutory plea of another action pending is dilatory | order requiring them to interplead, and to in its nature, and is not favored. 1 C. J. the consequent dismissal of the bank, each 28: Thompson v. Lyon, 14 Cal. 42; Larco of them might have been precluded from v. Clements, 36 Cal. 132. It may be raised by demurrer (Code Civ. Proc. § 430, subd. 3), but not unless the complaint shows affirmatively that the prior action possessed such characteristics as to make the plea available. One of these requisites is that the causes of action and the issues in the two suits must be substantially the same. 1 C. J. 61; Martin v. Splivalo, 69 Cal. 615, 11 Pac. 484: Heilbron v. Canal Co., 75 Cal. 433, 17 Pac. 535, 7 Am. St. Rep. 183; Hall v. Susskind, 109 Cal. 203, 41 Pac. 1012; Howard v. Hewitt, 139 Cal. 614, 73 Pac. 414. The former action here relied upon, one of interpleader, was begun some two months after a cause of action had, under the facts alleged in the present complaint, accrued to the plaintiff in this action. So far as appears from the face of the complaint, the plaintiff then had a right to recover two months' interest. It cannot be determined from the record before us whether this right was involved in the interpleader suit. In interpleader suits"there may always be a twofold contest: First, as to the right of the plaintiff to bring the suit and to force the defendants to interplead; and, if such right is maintained, the litigation among the defendants. * * Whether the plaintiff shall be permitted, to maintain such an action is first determined, and, if his right is sustained, an interlocutory decree is entered, requiring the defendants to litigate their claims inter sese.' S. F. Savings Union v. Long, 123 Cal. 107, 55 Pac. 708. [5] The only question that can be litigated between the plaintiff and the defendants in such action is whether the plaintiff is entitled to compel the defendants to interplead with respect to their conflicting claims to the fund or debt alleged by plaintiff to be in his hands, or due from him. The defendants cannot litigate in the interpleader suit any other claim against the plaintiff. 23 Cyc. 27; Adams v. Dixon, 19 Ga. 513, 65 Am. Dec. 608; Williams v. Matthews, 47 N. J. Eq. 196, 20 Atl. 261. "Defendants are entitled to aver and prove any facts which show that the complainant is not entitled to maintain his bill" (23 Cyc. 27), but they cannot, by counterclaim or cross-complaint, seek affirmative relief against the plaintiff concerning matters not embraced within his bill. Wakeman v. Kingsland, 46 N. J. Eq. 113, 18 Atl. 680. "The only relief which a defendant can have against the plaintiff in [7] But it does not appear that there was any such consent. For all that the complaint shows, this appellant may have resisted an order of interpleader upon the very ground that the bank owed her interest on the check from the date of presentation by her, and that the bank had not tendered payment of such interest. If this was the situation, the interpleader suit did not involve the entire cause of action presented by the present comformer action would be required to deterplaint. An inspection of the record of the mine how far the causes of action and the issues in the two suits are identical. The plea should therefore in this case be raised by answer rather than by demurrer to the complaint. [8] Furthermore, the judgment here given The defense of anwas one on the merits. other action pending does not authorize such a judgment. The only relief to which a defendant is entitled upon establishing this defense is a judgment that the action abate. Larco v. Clements, 36 Cal. 132; Casey v Jordan, 68 Cal. 246, 9 Pac. 92, 305; Coubrough v. Adams, 70 Cal. 374, 11 Pac. 634; Leonard v. Flynn, 89 Cal. 535, 26 Pac. 1097, 23 Am. St. Rep. 500. The judgment is reversed. We concur: SHAW, J.; LAWLOR, J. (174 Cal. 407) MILLER v. OLIVER et al. (Sac. 2272.) (Supreme Court of California. Feb. 13, 1917.) 1. QUIETING TITLE 32- RECEIVERS — APPOINTMENT-STATUTE. allowing the appointment of receiver in certain In view of Code Civ. Proc. § 564, subd. 1, instances, and subdivision 6, providing that a receiver may be appointed where receivers have heretofore been appointed by the usages of courts of equity, where the plaintiff was in actual possession of property, claiming ownership and the right of possession and full control, no receiver could be appointed in an action to have plaintiff of defendant corporation claiming ownership adjudged owner of the property but sole remedy and the right to possession is at law to recover For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes possession in which a receiver may not be ap; | sideration, and upon its promise and that of pointed. [Ed. Note.-For other cases, see Quieting Title, Cent. Dig. § 68.] defendants Oliver that the premises would be reconveyed to him upon demand, and by reason of undue influence on the part of said Olivers. He asked for a decree declaring him the owner of such property and canceling the deed to the Miller Farm Company. The allegations of the complaint were denied in the answer filed by the three defendants, and in that portion of the answer styled a "further and separate defense herein," embrac 2. QUIETING TITLE 32- INJUNCTION AND RECEIVER-APPOINTMENT-STATUTE. In view of Code Civ. Proc. § 564, subds. 1, 6, plaintiff claims to be the owner of real estate, and seeks the cancellation of the deed under which it is claimed that the defendant corporation is the owner and entitled to immediate possession. Defendants' proof is that defendant corporation is in actual possession and management, except as complete actual possession is impaired by the occupancy by plaintiffing 55 pages of the printed transcript, deof a dwelling house and his use of the barns, all under permission and as an occupant merely by sufferance. Plaintiff claims to be the owner and entitled to control. It was alleged that plaintiff was interfering with the management of the property by the corporation, even to its practical exclusion therefrom, to the great injury of the property and the corporation. Held that, even although the facts warranted an injunction to prohibit plaintiff from interfering with the control and management of the property, defendants were not entitled to the appointment of a receiver. [Ed. Note.-For other cases, see Quieting Title, Cent. Dig. § 68.] In Bank. Appeal from Superior Court, San Joaquin County; Frank H. Smith, Judge. Action by Charles E. Miller against Harriett A. Oliver (née Madigan) and others. From an order appointing a receiver pendente lite on application of defendants, plaintiff appeals. Order reversed. See, also, 163 Pac. 357. Webster, Webster & Blewett, of Stockton, for appellant. Clary & Louttit and A. H. Ashley, all of Stockton, for respondents. A H. Carpenter, of Stockton, amicus curiæ. fendants set up many matters upon which they asked, in addition to a judgment that defendant corporation is the absolute and unqualified owner in fee of such real property, for affirmative relief of various kinds including relief as to certain personal property used in connection with the realty, which was farm property, and also in the matter of determining the relative rights of defendant J. E. Oliver and plaintiff in the shares of stock of the Miller Farm Company. To prevent interference pending the litigation by plaintiff and his wife with the real and personal property alleged to belong to the corporation both a receiver and an injunction were asked. It was upon these allegations and certain affidavits which add nothing that is material to the question before us that the order appointing the receiver was made. We are unable to find in the record legal support for the order appealed from. The matter of the relative rights of J. E. Oliver and the plaintiff in the shares of stock of defendant corporation and the proper disposition of said shares is, of course, not material in this connection. Nothing in regard thereto assists in determining the question whether a receiver should have been appoint real property claimed by the plaintiff and defendant corporation and the personal proper ANGELLOTTI, C. J. This is an appeal by the plaintiff from an order appointing a re-ed to take charge and management of the ceiver pendente lite on the application of defendants. The order was one appointing W. J. Herson receiver “of the real and personalty of the latter located thereon. The "propproperty mentioned" in the pleadings for the erty or fund" which Oliver was seeking to purpose of protecting and caring for the subject to his alleged claim against plaintiff same, and to manage the same as directed was the shares of stock in defendant corporaby the court. It was provided in the order tion, and not the real and personal property that the plaintiff and his wife should not be of the corporation. Nothing in subdivision removed from the premises unless so requir-1 of section 564, Code of Civil Procedure, aued by a subsequent order, and that plaintiff thorized the appointment of the receiver on might be employed, if the receiver so elects, the application of the defendants, and the to assist him in such care and protection. order must be sustained, if at all, as one auThe order summarized the purpose as fol-thorized by subdivision 6 of said section, by lows: which it is provided that a receiver may be appointed "in all other cases where receivers have heretofore been appointed by the usages of courts of equity." "In other words, the receiver is to protect and substantially preserve in statu quo the property of the parties to this action, but, unless necessary or unless ordered by this court, not to interfere with the residence of the plaintiff and his wife on said premises." [1, 2] So far as we can see from the record, the situation as to the real and personal The action was instituted by plaintiff for property, so far as material, is as follows: the purpose of having it adjudged that he The plaintiff claims to be the owner of all was the owner of the real property described the property, and seeks the cancellation of in the complaint; that a conveyance thereof the deed under which defendants claim that made by him to defendant Miller Farm Com- the corporation is the owner and entitled to pany on June 21, 1907, was made without con- the immediate possession. Defendants' show The order appointing a receiver is re We concur: SHAW, J.; SLOSS, J.; (174 Cal. 404) MILLER v. OLIVER et al. (Sac. 2325.) (Supreme Court of California. Feb. 13, 1917. Rehearing Denied March 15, 1917.) 1. APPEAL AND ERROR 766-BRIEFS-STAT UTE. ing is substantially that the defendant cor- the property, and protect it against such poration was in actual possession and man- trespasses and interference. agement of all the property except in so far It is thoroughly settled that, except in as complete actual possession was impaired cases where receivers have heretofore been by the occupancy by plaintiff of the dwelling appointed by the usages of courts of equity, house on the realty as a dwelling place, and a situation expressly covered by subdivision the use of the barns, all under permission of 6 of section 564, Code of Civil Procedure, a defendant corporation and as an occupant receiver may be appointed only in such cases merely by sufferance. Being so on the prop- as the statute expressly specifies. We find no erty, he was claiming to be the owner and warrant for a conclusion that the usages of entitled to control it. In great detail it was courts of equity support an appointment in alleged that he was interfering in various such a situation as we have here, and it ways with the management of the property seems very clear to us that no statute auby the corporation, even to its practical ex-thorized the appointment. Something is said clusion therefrom, to the great injury of the about the transaction between J. E. Oliver property and the corporation owning it. We and plaintiff constituting a trust, but the may assume for the purposes of this decision trust, if any, was one solely in relation to the that the showing in this behalf was of such a shares of stock in Oliver's name claimed by nature that it would have sufficiently war- plaintiff. ranted the granting of an injunction to prohibit this alleged occupant by sufferance from versed. thus interfering with the control and management of the property, on the same theory that any mere trespasser whose unlawful acts were of such a nature and so continuous as to warrant equitable relief might be enjoined. But it does not follow that a receiver might properly be appointed. Of course, if the plaintiff were in actual possession of the property, claiming ownership and the right of possession and full control, no receiver could lawfully be appointed in view of our well-settled law. The sole remedy of the corporation claiming ownership and the right to possession would be at law to recover possession, and it is settled that in such a case, under our statute, a receiver may not be appointed; for it is not a case where a re-record, and respondents in their brief call attenceiver has "heretofore been appointed by the usages of courts of equity," or one in which such an appointment is specially authorized by any statute. See Bateman v. Superior Court, 54 Cal. 285; San Jose, etc., Bank v. Bank of Madera, 121 Cal. 545, 54 Pac. 85. The appointment of a receiver cannot be justified upon any theory that plaintiff is in actual possession of the property. So far as we can understand the theory of defendants as to the facts, the corporation is seeking to protect its property, of which it is actually in possession, from interference to its great injury and loss at the hands of another who is merely living on the land with its permission. So far as the right to a receiver is concerned, its relation to him is simply the relation of any owner in possession to an unlawful trespasser. By reason of his living upon the land, he may have greater opportunity to impede and interfere with the owner in the enjoyment of its rights of ownership and possession, but this does not affect the question. We are at a complete loss to find any good basis for a conclusion that in such a situation a receiver may be appointed on the application of the owner to take over the custody and management of vides that the parties must print in their briefs, Error, Cent. Dig. §§ 3101, 3126.] 2. COSTS 260(4) · VEXATIOUS APPEAL In an action to cancel a deed on the ground that plaintiff was inexperienced and induced to execute it without consideration by his moth-. er, a defendant, who controlled him, when the findings were for defendants in all issues, and it is not claimed that the findings were not supported by substantial evidence, it is evident that there was no merit in the appeal, and that it was taken to vex, hinder, and delay, so that it was a proper case for the imposition of damages. [Ed. Note. For other cases, see Costs, Cent. Dig. $$ 986-991, 996.] Department 1. Appeal from Superior Court, San Joaquin County; Frank H. Smith, Judge. Action by Charles E. Miller against Harriet A. Oliver and others, in which plaintiff's wife was made a party by defendants' crosscomplaint. Judgment for defendants, and plaintiffs appeal. Affirmed. See, also, 163 Pac. 355. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |