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Code of Civil Procedure.-In re Schum, 232 without redress.-Buxton v. Pennsylvania Fed. 414.
Lumber Co., 221 Fed. 718. 3. -Subdivision 10Salary.Where the judgment debtor claimed exemption under 8 702. subdivision 10 it was error for the trial 1. Redemption - Construction of section. judge to deny a motion for the release of Where incumbered realty is conveyed to a the money on the ground that the salary trustee to sell and apply the proceeds to the was not necessary for the purposes stated, payment of the debt and expenses and then as it appeared that the debtor had drawn to apportion the residue among three differfifteen hundred dollars from the bank,
the bank, ent creditors, and the mortgage is forewhich had been wholly unaccounted for,
closed and the certificate of title is obwhere the uncontradicted testimony of the
tained by assignee of two of the three debtor showed that the money had all been beneficiaries, the third can not have the paid out by him for election expenses and
trust restored after expiration of the time litigation.-People (ex rel. Dorris) v. Mc for redemption by offering to pay the full Kamy, 28 Cal. App. 196, 151 Pac. 743.
redemption price and the amount due the
others. The right of redemption open to $ 700.
such beneficiaries was not an equitable 1. Execution sale Title acquired by pur
right to be exercised at their pleasure, but chaser.The purchaser at an execution sale
the statutory right declared in this section. takes his title subject to such liens, ease
McNutt v. Nuevo Land Co., 167 Cal. 459, 140 ments and equities as it was subject to in
Pac. 6. the hands of the defendant in execution, unless he can show that he is a purchaser
8 703. in good faith, and without any notice, actual 1. Redemption by judgment creditor, ete. or constructive, of the existence of such -Construction of section.—It is only where lien, easement or equity.-Koch v. Wilcoxon, the judgment debtor redeems that the ef30 Cal. App. 517, 158 Pac. 1048.
fect of the sale is terminated and he is 2. A purchaser at an execution sale, in restored to his estate.-McNutt v. Nuevo order to maintain his title as against the Land Co., 167 Cal. 459, 140 Pac. 6. claim of a third person, must have purchased without any notice that the title $710. was other than the record showed it to be.
MONEYS DUE JUDGMENT DEBTORKoch v. Wilcoxon, 30 Cal. App. 517, 158 Pac.
COLLECTION OF. 1048. 3. Notice which will charge the pur
1. As to purpose of section. chaser necessarily is any legal notice which
2. Construction of section. he may have received of the defect in the
3. Constitutionality of section. title prior to the occurrence of the sale
4. Filing of transcript, effect of. and the payment of his money.-Koch v.
5. Priority of claims. Wilcoxon, 30 Cal. App. 517, 158 Pac. 1048.
1. As to. purpose of section.-The pur4. If the judgment debtor has a good pose of enacting the statute was to afford title, the purchaser gets it; if a partial a means whereby money due from a munititle, he gets that; or if no title, he gets cipality to the debtor of another could be nothing. He assumes the risk of defects reached by the creditor and subjected to in the debtor's title; and this is true whether the payment of his claim. This section he purchases with or without notice.-Bux- must be liberally construed with a view to ton v. Pennsylvania Lumber Co., 221 Fed. effect its object. Where the provisions of 718.
the section have been complied with a writ 5. A purchaser is bound to examine, or of mandate commanding the auditor to cause to be examined, all the documents of draw a warrant upon the city treasurer will record constituting a part of the chain of lie. It makes no difference that the munititle of those from whom he buys. The rule cipal charter requires all warrants to be applies with special force to purchasers at signed by the mayor, nor that the fund out execution sales, and to judgments, and to of which the plaintiff should have been paid the proceedings under which such sales are is exhausted, and hence the writ unavailing made. Of such equities and irregularities if issued.-Ott Hardware Company v. Davis, as these disclose, the purchaser must be 165 Cal. 795, 134 Pac. 973. deemed to have had notice.-Buxton v. Penn 2. Construction of section. The filing sylvania Lumber Co., 221 Fed. 718.
with the city auditor of the transcript of 6. A purchaser from a purchaser under a judgment imposed upon that officer the mindecree void for want of jurisdiction is not isterial duty of drawing a warrant. Inasa bona fide purchaser without notice. He much as prior to the adoption of this is bound to know the want of jurisdiction. section municipal corporations were not He is bound to know defects in papers show subject to any of the statutory provisions ing his claim of title.-Buxton v. Pennsyl- relating to attachment or garnishment this vania Lumber Co., 221 Fed. 718.
added enactment must be given the effect 7. Parties attempting to enforce a void only of prescribing a ministerial duty for judgment may be responsible as trespassers the non-performance of which no liability The purchaser at a sale by virtue of its can accrue against the municipality. (Disauthority finds himself without title and senting opinion of Angellotti, J., with whom
Henshaw concurred.)-Ott Hardware Co. v. 8715.
1. Supplementary proceedings-Compelthe enactment of this section the salary of
ling debtor to appear.—Where the execution
has been issued and not returned there a public officer was not subject to attach
must be an affidavit showing that the execument or garnishment. The enactment of
tion is unsatisfied and that the debtor has this section was a valid exercise of legislative power.-Trow v. Moody, 27 Cal. App.
property which he refuses to apply toward 403, 150 Pac. 77.
satisfaction of the judgment.--People ex rel.
Dorris v. McKamy, 28 Cal. App. 196, 151 4. Filing transcript, effect of.--The filing
Pac. 743. of a transcript of a judgment against a city
See, also, annotation to preceding section. official with the auditor as provided by section 710 of the Code of Civil Procedure has
8 717. the effect of impounding whatever money is owing to the official at the time the tran 1. Supplementary proceeding Examinscript is filed, and the same has priority ation of debtor.-An order subjecting a over an instrument filed on the same day judgment debtor to a second examination but before the filing of the transcript upon proceedings supplemental to execution wherein such official made a purported as can not be had without disclosing some signment of the portion of the monthly sal new facts. Such an order is unwarranted in ary which he had then earned to the person a case where the second affidavit is identical filing the instrument.—Trow v. Moody, 27 with the first, except that it sets forth that Cal. App. 403, 150 Pac. 77.
the defendant withdrew a certain amount 3. Priority of claims.—The claim of one of money from a bank, but does not allege who garnishes a debt due to his judgment that the affiant did not at the time of the debtor is superior to the claims of laborers first examination have full knowledge of and materialmen under section 1184, who the facts concerning the withdrawal of the give notice after the garnishment has been money.-People ex rel. Dorris V. McKamy, made.-Miles v. Ryan, 172 Cal. 205, 157 28 Cal. App. 196, 151 Pac. 743. Pac. 5.
2. An order made upon such an examina
tion that the salary of the debtor was not $ 714.
necessary for the support of his family, be
cause he had not satisfactorily accounted 1. Supplementary proceedings – Con
for certain money which he had months bestruction of section.—This chapter relates
fore drawn from a bank, is unauthorized, only to proceedings supplementary to exe
where his testimony is uncontradicted that cution and it is not necessary that the pro
he spent such bank money for election exvisions should be resorted to before begin
penses and litigation.-People ex rel. Dorning action against one who has been
ris v. McKamy, 28 Cal. App. 196, 151 Pac. garnisheed under sections 543 and 544,
743. Marshall v. Wentz, 28 Cal. App. 540, 153 Pac. 244.
$ 726. 2. There need be no other showing of facts than that of the execution being re
FORECLOSURE SUITS. turned unsatisfied, because the return of the
1, 2. Construction of section. execution itself unsatisfied presupposes that 3. As to who may be parties plaintifsearch for property of the debtor has been
Lessor. fruitless.-People ex rel. Dorris v. McKamy, 4. But one action to recover debt28 Cal. App. 196, 151 Pac. 743.
Waiver, 3. The examination of the judgment
5, 6. Complaint. debtor under this and the following section
7-9. Determination of conflicting claims.
10. Effect of enforcing mechanics' lien. is the same; it covers the same field and has the same purpose, namely, that of hav
11-15. Effect of filing complaint. ing disclosed by an examination of the
16. Form of judgment. debtor some property not exempt from ex
17-19. New or additional security taken
Effect of. ecution which the judgment creditor may have subjected to sale under his execution.
20, 21. Personal action for deficiency. -People ex rel. Dorris v. McKamy, 28 Cal. 1. Construction of section. This section, App. 196, 151 Pac. 743.
providing that there can be but one action 4. After an examination has been held for the recovery of any debt or the enforceunder this and the following section and ment of any right secured by mortgage, is the creditor has been given the privilege clearly inapplicable to the case where the of fully examining his debtor as to his lessor resorted to the summary action of property, he can not subject the debtor to unlawful detainer for nonpayment of rent a second examination without disclosing to
samination without disclosing to against an assignee of the lessee; certainly the court some new facts, such as that other he did not lose his right to foreclose as facts have become known to the creditor against the original lessee, a chattel mortof which he was not apprised at the former gage given as security for the payment of examination, or matters of like kind.-Peo damages on account of any breach of the ple ex rel. Dorris v. McKamy, 28 Cal. App. lease. -Schehr v. Berkey, 166 Cal. 157, 135 196. 151 Pac. 743.
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' lien.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 Co. v. Nelson, 26 Cal. App. 392, 147 Pac. 98. Cal. App. 400, 147 Pac. 101.
11. Effect of filing complaint.-Where 4. But one action to recover debt there is a mortgage covering real and perWaiver.—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. v. 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 7. 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 as 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
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 no form for the judgment. The that of the plaintiff; and the defendants ofprincipal 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
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 the lien, and, finally, where the nature of 1. 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 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, Aun. 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
5. --Necessity for cross-complaint. mortgage on personal property is not pre
6, 7. Jury trial. cluded by section 726 of the Code of Civil
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
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. 4. Defendant's right-Answer.--In an ac 11. A complaint in equity to set aside in tion to quiet title, the defendants are en 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 elaimsCondiPac, 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
8 752. 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. 2. Right to partition-Postponement of. Russek, 171 Cal. 731, 154 Pac. 860.
--Partition of land held in common will not 9. Ownersbip in easement.-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, duraction lies whenever the records of the ing the progress of the suit and before the