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2. This section does not contemplate est, involving the validity of their attachfrom the language "there can be but one ment and judgment liens on the property, action for the recovery of any debt ... and attacking the alleged conveyance of the secured by mortgage upon real or personal land as having been made with the intent property," that because a person has taken to defraud them.-Rowley v. Davis, 169 Cal. a mortgage he can not take other indepen- 678, 147 Pac. 958. dent security for his debt, and where the 9. Such practice does not imperil or contract for such security permitted, en- prejudice the defendant's right of redempforce such contract without reference to the tion; it would run from the time of sale and mortgage security.-Martin V. Becker, 169 the amounts to be paid would depend on the Cal. 301, Ann. Cas. 1916D 176, 146 Pac. 665. price paid at the sale.—Rowley v. Davis, 169

3. As to who may be parties plaintiff- Cal. 678, 147 Pac. 958. Lessor.-A lessor may maintain an action 10. Effect of enforcing mechanics' llen.for the foreclosure of a chattel mortgage In this action for the foreclosure of a mortgiven to secure the faithful performance of gage, the contention of the mortgagors that the covenants and conditions of a lease, the right to foreclose the same on any of even though prior to the institution of such the claims intended to be covered by the action the lessor has recovered a judgment mortgage was waived by the action of the in an unlawful detainer proceeding for the mortgagee in commencing suits to enforce restitution of the premises, forfeiture of mechanics' liens, is untenable, for the reathe lease and the amount due for rent and son that such actions relate to claims where this breach of the lease, viz., the non- omitted from the complaint, although sepayment of rent, was the basis of both ac- cured by the mortgage.—Post v. Becker, 26 tions.-Ashcroft Estate v. Nelson, 26 Cal. App. 392, 147 Pac. 98. Cal. App. 400, 147 Pac. 101.

11. Effect of filing complaint.-Where But

action to recover debt- there is a mortgage covering real and perWalver.-The rule that there can be but one sonal property, comprising parts of a single action for the recovery of a debt secured working plant or utility, in which each part by mortgage is intended for the benefit of is necessary to give value to the others and the primary debtor, and may be waived.- where a dismemberment of the system would Martin v. Becker, 169 Cal. 301, Ann. Cas. destroy or greatly impair the usefulness or 1916D 176, 146 Pac. 665.

value of its component parts, the propriety 5. Complaint.-A complaint in an action of a decree directing sale in entirety withfor the foreclosure of a mortgage which out redemption, is well settled, and such omits to allege that the plaintiff was the rule is not confined to property of a public owner and holder of the note at the time service corporation.—Title Ins. & Trust Co. it exercised the option, prescribed by the v. California Devel. Co., 171 Cal. 174, 152 note, to declare and treat the whole of the Pac. 542. principal and accrued interest due and pay- 12. Where it is charged in foreclosure able upon the default in the payment of proceedings that adverse claims have been interest as in the note provided, is sufficient fraudulently acquired to defeat the rights as against general demurrer, where it de- of the mortgagee, they are proper subjects clares that the defendants executed the note for consideration. -Title Ins. & Trust Co. v. and mortgage, that the balance due thereon California Devel. Co., 171 Cal, 174, 152 Pac. is due, owing and unpaid from defendant to 542. plaintiff, and that the plaintiff exercised its 13. The rule that adverse titles are not option to declare the whole sum due.- to be adjudicated in actions to foreclose Rock Ridge Park Co. y. Wells, 27 Cal. App. mortgages does not apply when the only 281, 149 Pac. 792.

adverse party is in fact an agent of the 6. Such a complaint is not insufficient be- plaintiff.- Title Ins. & Trust Co. v. Califorcause of the omission to allege that the nia Devel. Co., 171 Cal. 174, 152 Pac. 542. note was delivered to the plaintiff, where it 14. In an action for the foreclosure of a is alleged that the mortgage was delivered. mortgage against the mortgagor and vari-Rock Ridge Park Co. v. Wells, 27 Cal. ous persons who had successively assumed App. 281, 149 Pac. 792.

the payment of the mortgage debt, an order Determination of conflicting claims.-- granting a new trial as to one of the deIt is within the sound discretion of the trial fendants, on stipulation of plaintiff and such court, in an action for the foreclosure of a defendant, without notice to the other demortgage, to give the plaintiff judgment for fendants, is not erroneous, as the judgment the relief asked and postpone the determin- in favor of the plaintiff is not res judicata, ation of conflicting claims between the de- to any issue between the defendants fendants in which the plaintiff is not inter- themselves, and such other defendants are ested and which do not affect the relief not interested parties in the new trial of which he asks.-Rowley v. Davis, 169 Cal. the issues raised between the plaintiff and 678, 147 Pac. 958.

such defendant.—Robson v. Superior Court, 8. It is not abuse of discretion in an 171 Cal. 588, 154 Pac. 8. action for the foreclosure of a mortgage, 15. The filing of a complaint in forecloswhere there is no defense to the plaintiff's ure is not a waiver of the judgment in a action, to make a decree of foreclosure re- prior ejectment suit, or a recognition of the serving for future determination certain lit- instrument in form of a deed as a mortgage, igation between the mortgagors and third where it appears that such deed was departies in which the plaintiff has no inter- posited under an agreement that it should

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be held for a certain time, and if the debt tioned in the notices of sale posted by it for which it was given as security was not but did not so make said sale at public then paid, the deed delivered to the grantee auction, then their verdict should be for was in satisfaction of the debt.-Simon v. the defendants, is prejudicial error, where McCoy, 28 Cal. App. 523, 153 Pac. 406.

the only evidence offered of a sale at the 16.

Form of judgment.-This section pre- time and place stated in the notices was scribes form for the judgment. The that of the plaintiff; and the defendants of principal object of the proceeding is to fered evidence of their presence at the place cause the sale of the incumbered property

of sale at the time mentioned in the notices and the application of the proceeds of sale and that no sale was then made.-J. I. Case to the payment of the debt secured.—Mor- Threshing Machine Co. v. Copren Bros., 32 ris v. Hartley, 26 Cal. App. 61, 146 Pac. 73. Cal. App. 194, 162 Pac. 647. 17. New or additional security taken

22. In such an action the question as to Effect of.—The taking of new or additional whether the property was sold goes to the security operates to destroy an existing

foundation of the plaintiff's cause of aclien only where the destruction is worked tion, and the fact that the defendants were by virtue of a positive declaration of law, given credit for the sum alleged to have been where it is worked by the agreement and bid, and were therefore uninjured by what contract of the parties, where it is worked was in fact done, is immaterial.-J. I. Case by necessary intendment growing out of Threshing Machine Co. v. Copren Bros., 32 the agreement of the parties, in that the Cal. App. 194, 162 Pac. 647. taking of the later security is inconsistent with the continued existence thereafter of 8 731. the lien, and, finally, where the nature of

Nulsance-Jurisdiction where acts are the earlier or later security, as that it is crime as well as nuisance.While a court of concealed or undisclosed, gives rise to a equity has no jurisdiction to enjoin the situation where it would partake of fraud commission of acts which, if committed, upon other claimants to permit the earlier such as the indecent exposure defined in lien to be held valid, whereupon equity in- section 311 of the Penal Code, yet where terposes and declares it to have been waived the threatened acts in addition to being an or lost by the taking of later security, or indictable offense also constitute a public what is in effect the same, erects a bar to nuisance courts of equity are vested with its enforcement.-Martin v. Becker, 169 Cal. jurisdiction to interpose their injunctive 301, Ann. Cas. 1916D 176, 146 Pac. 665.

process to prevent injury which will result 18. The law never contemplated that be- from the maintenance thereof.-Weis v. Sucause a man had taken a mortgage he could perior Court, 30 Cal. App. 730, 159 Pac. 464. not take other independent security for his 2. What may be abated.-Any act which debt, and, if the contract for such security is an offense against public decency, or any permitted it, enforce such contract without public exhibition which is offensive to the reference to the mortgage debt.—Martin v. senses, whether of sight, sound, or smell, or Becker, 169 Cal. 301, Ann, Cas. 1916D 176, 146 which tends to corrupt public morals or Pac. 665.

disturb the good order and welfare of soci19. A materialman does not lose his

ety is a public nuisance for the abatement right to a mechanic's lien by taking a mort. of which the district attorney may bring gage upon the real property of the con- an action in the name of the people.-Weis tractor for the value of the material sold v. Superior Court, 30 Cal. App. 730, 159 Pac. to him, either by virtue of section 726 of 464. the Code of Civil Procedure, or by the application of any rule of decision holding

8 738. that the taking of either security destroys

QUIETING TITLE. the right to such 'lien.-Martin V. Becker,

1, 2. As to title that may be quieted. 169 Cal. 301, Ann. Cas. 1916D 176, 146 Pac.

3. Condition precedent to bringing ac665.

tion. 20. Personal action for deficiency.The

4. Defendant's right-Answer. holder of promissory notes secured by a mortgage on personal property is not pre

5. —Necessity for cross-complaint. cluded by section 726 of the Code of Civil

6, 7. Jury trial.

8. Evidence. Procedure from bringing and maintaining

9. Ownership of easement. a personal action for the balance due on the notes, after having made a sale of the

10, 11. Proceedings under McEnerney Act. property under the power contained in the 1. As to title that may be quieted.--A mortgage, and giving the mortgagor credit court of equity may entertain an action to therefor, as in such a case the notes are not quiet title to water not immediately avail"secured" by mortgage at the time of the able and may grant appropriate relief.-Bycommencement of the action.-J. I. Case ington v. Sacramento Vall. W. S. C. Co., 170 Threshing Machine Co. v. Copren Bros., 32 Cal. 124, 148 Pac. 791. Cal. App. 194, 162 Pac. 647.

2. The right of a stockholder in a mu21. In such an action, the refusal to in- tual water company (under C. C. section struct the jury that if they believed from 324) by virtue of his ownership of stock to the evidence that the plaintiff elected to sell receive a specified quantity of water for certhe engine (the mortgaged property) at pub- tain land is real property, and conflicting lic auction at the time and place men- claims arising thereunder may be made the

en

subject of an action under this section.- county have been lost or destroyed "in Stone v. Imperial Water Co., 173 Cal. 39, whole or in any material part," and, there159 Pac. 164.

fore, the existence of parts of the records 3. Condition precedent to bring action.- does not absolve a party claiming an interFormal re-entry upon the land by the gran- est in property from the duty of availing tor is not essential as a prerequisite to the himself of the information open to him rebringing of an action to quiet title and for garding such an action, where it is cona reconveyance of the property.-Firth v. ducted with all the prescribed formalities.-Los Angeles Pac. Land Co., 28 Cal. App. 399, Dowling v. Spring Valley Water Co., -- Cal. 152 Pac. 935.

- 162 Pac. 894. Defendant's right-Answer.-In an ac- 11. A complaint in equity to set aside in tion to quiet title, the defendants are part a decree quieting title to real property titled to rely on a claim of title based on in San Francisco, pursuant to a proceeding adverse possession, without specifically under the statute commonly known as the pleading it in their answer wherein they "McEnerney Act," on the ground that neiallege ownership in themselves.-Jordan v. ther the plaintiff nor his predecessor in inBeale, 172 Cal. 226, 155 Pac. 990.

terest had any notice or knowledge of the 5. Necessity for cross-complaint. pendency of the quiet title action, and that While it is settled that a defendant called the agents of the plaintiff in such action upon by plaintiff's action to quiet title to

falsely swore that they knew of no adverse land to set up his own claim of title, may file

claimants to the property, fails to state a a cross-complaint setting up his own alleged cause of action, where it is alleged only on ownership and asking that he be adjudged

information and belief that the predecessor the owner, or may do the same thing in his

in interest of the plaintiff was without noanswer, ordinarily no such practice is es- tice or knowledge of the pendency of the sential to his protection, as a conclusion action, and that the persons making the against the plaintiff upon the issues raised

statements on behalf of the plaintiff in the by the complaint and answer fully deter

action to quiet title knew the same to be mines the title as between the parties, and

false and untrue.-Dowling v. Spring Valprotects the defendant against any claim

ley Water Co., - Cal. — 162 Pac. 894. of the plaintiff as to title as fully as an affirmative decree in his favor would do.

8 749[a]. Larkin v. Superior Court, 171 Cal. 719, 154

1. Determining adverse claims (ondiPac, 841.

tions precedent.--Even though the lien of a 6. Jury trial.-In a simple action to quiet mortgage may have become extinguished title by a plaintiff in possession, in which the mortgagor can not quiet his title to the the judgment for the plaintiff made no men- mortgaged premises under this and sections tion of possession, the defendant was not 750 and 751, as against the mortgagee withentitled to a jury trial.-Cobe v. Crane, 173 out paying the mortgage debt.-Bulson v. Cal. 116, 159 Pac. 587.

Moffatt, 173 Cal. 685, 161 Pac. 259. 7. The refusal to grant a jury trial in an action to quiet title is not erroneous, where

8752 the complaint alleges the possession of the 1. Partition among cotenents.-A suit in plaintiff and no denial thereof is made by partition under our code is, in its nature the answer.-Fuller v. Kelly, 28 Cal. App. and essence, equitable, just and proper, and 160, 151 Pac. 749.

will not only allot to a cotenant that part of 8. Evidence.—Where, in

an action to the common land upon which he has valuquiet title, it is admitted at the trial that able improvements, but will also set apart the plaintiff was the owner of the land, a specific tract to the share of a cotenant except so far as her title may have been who has undertaken to convey the title in divested by virtue of a deed executed pur- fee to such tract in severalty, so that the suant to proceedings had under the “Street grantee may have that which is justly his, Opening Act of 1903" it is not error to ad- when such disposition of the land can be mit the deed in evidence, without pleading made without material injury to the rights and independent proof of the adoption of and interest of the other cotenants.-East the ordinance declaring the intention to Shore Co. v. Richmond Belt R., 172 Cal. 174, open the street, or of the ordinance order- 155 Pac. 999. ing the improvement to be made.---Tilton v.

Right to partition-Postponement of. Russek, 171 Cal. 731, 154 Pac. 860.

-Partition of land held in common will not 9. Ownersbip in ensement.-In an action be denied until such time as the same will to quiet title, it is competent under an al- result in the fullest profit to both parties, legation of ownership in fee of a right of since ordinarily, if the party seeking partiway for railroad purposes to find an owner- tion is shown to be a tenant in common, ship of an ea sement.--Gordon v. Cadwala- and as such entitled to the possession of the der, 172 Cal. 254, 156 Pac. 471.

land sought to be partitioned, his right to 10. Proceedings under McEnerney Act. partition is absolute.--Rich v. Smith, 26 Cal. A suit under the McEnerney Act does not im- App. 775, 148 Pac. 545. ply the destruction of all the records, which by any possibility may have reference to

$759. the property to which the plaintiff seeks to 1. Relative rights of grantees and granquiet title against all persons, but such an tors.-In an action for partition, where, Juraction lies whenever the records of the ing the progress of the suit and before the

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$ 783.

decision, some of the common owners made hence do not preserve the rights of all pardeeds purporting to convey to third per- ties in interest, objection to their report sons, in severalty, the whole title to speci- will afford ample remedy to the party claimfic parcels of the common land, it is not ing to be aggrieved thereby.-Rich v. Smith, error, so far as such an appealing tenant 26 Cal. App. 775, 148 Pac. 545. is concerned, to open the case after the evidence had been closed and the cause

8 766. submitted, and allow proof to be made of

1. such conveyances, as they involved only the

Decree, effect of.-A decree in partirelative rights of the grantees and grantors

tion has no other effect than to sever the in the share set apart by the partition to

unity of possession, and does not vest in

either of the cotenants any new or addithe grantors.-East Shore Co. v. Richmond

tional title.—Potrero Nuevo Land Co. V. Belt R., 172 Cal. 174, 155 Pac. 999.

All Persons, 29 Cal. App. 743, 156 Pac. 876. 8 763 1. Partition-Sale when.-There is a pre

1. sumption that land held in common tenancy

Who may purchase.-The rule forbidcan be equitably divided.

ding a trustee to purchase at his own sale It is only where

does not apply to a purchase at a partition the contrary "appears by the evidence" that a sale may be ordered. Therefore one who,

sale, made pursuant to a decree in equity

of a upon appeal, contends for a sale, instead of

court of foreign jurisdiction, which a partition as ordered, must show that it

has acquired jurisdiction of the parties, notappears by the evidence that a partition

withstanding the property was distributed would prejudice the owners.

“in trust" in a probate proceeding by a

The burden of proof to show such prejudice rests on

court of this state.--Plant v. Plant, 171 Cal. him.-East Shore Co. v. Richmond Belt R.,

765, 154 Pac. 1058. 172 Cal. 174, 155 Pac. 999.

$784. 8 764.

1. Objections, time for.-The time for a 1. As to method of partition.-The gran

cotenant to make objections to findings in tee of each parcel is entitled to have the

partition is when the report of the referees same set off to him out of the share of his

is made to the court.-East Shore Co. v. grantor, if it can be done without injury

Richmond Belt Ry., 172 Cal. 174, 155 Pac. to the other tenants in common; but, the

999. fact that he owns contiguous land which will make his ownership of the specific par

8 785. cel more advantageous to him, can not jus- 1. Title of purchaser.-The sale under a tify the allotment thereof to him, if to do so partition decree is a judicial sale, and the would in fact materially injure another ten- rule in execution sales is applicable that ant in common.-East Shore Co. v. Richmond the purchaser "takes the precise interest of Belt Ry., 172 Cal. 174, 155 Pac. 999.

the defendant, and after-acquired title by Contribution and subrogation. In the the seller does not pass to the purchaser." event that foreclosure proceedings become - Potrero Nuevo Land Co. v. All Persons, necessary by reason of the failure of the 29 Cal. App. 743, 156 Pac. 876. owners in severalty of the mortgaged prop- 2. Under a partition sale made by the erty to contribute equally to the payment of holders of ninety-nine year terms in beach the mortgage debt, the particular owner and water lots of the city and county of who may be compelled to pay the entire San Francisco, the purchasers acquire the debt will be rightfully and readily subro- interests of the partitioners at the time and gated, to the extent of the excess payment, nothing more, and the purchase by one of to the interests of the mortgagee in a proper them subsequent to the partition sale of proceeding instituted for that purpose.-

the reversionary interests of the state Rich v. Smith, 26 Cal. App. 775, 148 Pac. therein, does not inure to the benefit of his 545.

copurchasers.—Potrero Nuevo Land Co. V. 3. When one tenant in common has paid All Persons, 29 Cal. App. 743, 156 Pac. 876. a debt or obligation for the benefit of the joint property, or has discharged a lien or 8 802. assessment imposed upon it as a common

1. Scire facias.-While it is true that burden, he is entitled as matter of right to

scire facias for the purpose of obtaining have his cotenant, who has received the

execution is ordinarily a judicial writ to benefit of it, refund to him his proportion

continue the effect of the former judgment, ate share of the amount paid, and it is proper

yet it is in the nature of an action because to provide in the decree of partition that

the defendant may plead to it, and in many the share of the latter be charged with a

cases it has been classified as, in substance, lien therefor.-Rich v. Smith, 26 Cal. App.

a new action.—Thomas v. Lally, 28 Cal. App. 775, 148 Pac. 545.

308, 152 Pac. 53.

2. A judgment upon a scire facias is in $ 765.

legal effect a new judgment, and the statute 1. Objection to referee's report.-- Where of limitations begins to run from its date referees in partition proceedings do not anew.-Thomas v. Lally, 28 Cal. App. 308, comply with the interlocutory decree, and 152 Pac. 53.

8803.

1. Quo warranto-Nature of remedy.-A quo warranto proceeding to oust one charged with wrongfully and without authority exercising the powers of a public office is not simply a civil remedy, but one wherein the interests of the public are involved.—People v. Bailey, 30 Cal. App. 581, 158 Pac. 1036.

2. -Laches, effect of.-A quo warranto proceeding prosecuted by the attorney general for the purpose of having it determined that one has unlawfully intruded into and is unlawfully holding a public office, is not barred by lapse of time, and as the action can only be brought with the consent and permission of the attorney general, it is to be assumed that he will not exercise his discretion to not permit the institution of such a suit if by reason of a great lapse of time the claim has become stale, or for any other reason the state has ceased to have present interest in it.—People v. Bailey, 30 Cal. App. 581, 158 Pac. 1036.

3. The right to prosecute a quo warranto proceeding to determine the right to a public office is not barred by laches, where the record shows that the relator had at all times been actively asserting his right to the office, but by a mistaken remedy.-People v. Bailey, 30 Cal. App. 581, 158 Pac. 1036.

$ 805.

1. Scope of judgment.--The court may provide not only for the removal of the defendant but for the restoration to office of the relator.--People v. Bailey, 30 Cal. App. 581, 158 Pac. 1036.

8 813.

1. Actions against vessels-Construction of section.-The lien declared does not de

pend upon possession of the boat, but exists by virtue of the statute and continues one year. While the law gives the lien it makes no provision for its enforcement other than by an action brought or attachment sued out as in section 817.-Graham v. Annis, 28 Cal. App. 754, 153 Pac. 981.

2. One who performs labor or furnishes materials in the construction, repair or equipment of a steamer, vessel or boat is not required to resort to the special proceedings provided by sections 813 et seq. of the Code of Civil Procedure to enforce the payment of his demands, but may bring an ordinary action against the owner therefor, and is not barred from availing himself of the general law relating to attachments, on the assumption that the debt is "secured by mortgage or lien upon real or personal property, or pledge of personal property."Graham v. Annis, 28 Cal. App. 754, 153 Pac. 981.

3. The lien given by the code provisions and the right to enforce it continue for one year, as between the party who performs labor or furnishes material in the building or repair and the owner of the vessel, but, unless fixed and determined by action brought, it is but a floating right.Graham v. Annis, 28 Cal. App. 754, 153 Pac. 981.

a

8 817.

1. Attaching vessel - Construction. There is nothing herein to prevent a mechanic or laborer from bringing an ordinary action against the owner of a vessel for labor or materials in the repairs of a vessel and obtaining judgment and enforcing it by execution as in ordinary cases.-Graham v. Annis, 28 Cal. App. 754, 153 Pac. 981.

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