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2. This section does not contemplate from the language "there can be but one action for the recovery of any debt . . . secured by mortgage upon real or personal property," that because a person has taken a mortgage he can not take other independent security for his debt, and where the contract for such security permitted, enforce such contract without reference to the mortgage security.-Martin v. Becker, 169 Cal. 301, Ann. Cas. 1916D 176, 146 Pac. 665.

3. As to who may be parties plaintiff— Lessor.-A lessor may maintain an action for the foreclosure of a chattel mortgage given to secure the faithful performance of the covenants and conditions of a lease, even though prior to the institution of such action the lessor has recovered a judgment in an unlawful detainer proceeding for the restitution of the premises, forfeiture of the lease and the amount due for rent and where this breach of the lease, viz., the nonpayment of rent, was the basis of both actions. Ashcroft Estate Co. v. Nelson, 26 Cal. App. 400, 147 Pac. 101.

4. But one action to recover debtWaiver. The rule that there can be but one action for the recovery of a debt secured by mortgage is intended for the benefit of the primary debtor, and may be waived.Martin v. Becker, 169 Cal. 301, Ann. Cas. 1916D 176, 146 Pac. 665.

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5. Complaint.—A complaint in an action for the foreclosure of a mortgage which omits to allege that the plaintiff was the owner and holder of the note at the time it exercised the option, prescribed by the note, to declare and treat the whole of the principal and accrued interest due and payable upon the default in the payment of interest as in the note provided, is sufficient as against general demurrer, where it declares that the defendants executed the note and mortgage, that the balance due thereon is due, owing and unpaid from defendant to plaintiff, and that the plaintiff exercised its option to declare the whole sum due.Rock Ridge Park Co. v. Wells, 27 Cal. App. 281, 149 Pac. 792.

6. Such a complaint is not insufficient because of the omission to allege that the note was delivered to the plaintiff, where it is alleged that the mortgage was delivered. -Rock Ridge Park Co. v. Wells, 27 Cal. App. 281, 149 Pac. 792.

7. Determination of conflicting claims.—It is within the sound discretion of the trial court, in an action for the foreclosure of a mortgage, to give the plaintiff judgment for the relief asked and postpone the determination of conflicting claims between the defendants in which the plaintiff is not interested and which do not affect the relief which he asks.-Rowley v. Davis, 169 Cal. 678, 147 Pac. 958.

8. It is not abuse of discretion in an action for the foreclosure of a mortgage, where there is no defense to the plaintiff's action, to make a decree of foreclosure reserving for future determination certain litigation between the mortgagors and third parties in which the plaintiff has no inter

est, involving the validity of their attachment and judgment liens on the property, and attacking the alleged conveyance of the land as having been made with the intent to defraud them.-Rowley v. Davis, 169 Cal. 678, 147 Pac. 958.

9. Such practice does not imperil or prejudice the defendant's right of redemption; it would run from the time of sale and the amounts to be paid would depend on the price paid at the sale.-Rowley v. Davis, 169 Cal. 678, 147 Pac. 958.

10. Effect of enforcing mechanics' lien.— In this action for the foreclosure of a mortgage, the contention of the mortgagors that the right to foreclose the same on any of the claims intended to be covered by the mortgage was waived by the action of the mortgagee in commencing suits to enforce mechanics' liens, is untenable, for the reason that such actions relate to claims omitted from the complaint, although secured by the mortgage.-Post v. Becker, 26 Cal. App. 392, 147 Pac. 98.

11. Effect of filing complaint.-Where there is a mortgage covering real and personal property, comprising parts of a single working plant or utility, in which each part is necessary to give value to the others and where a dismemberment of the system would destroy or greatly impair the usefulness or value of its component parts, the propriety of a decree directing sale in entirety without redemption, is well settled, and such rule is not confined to property of a public service corporation.-Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 542.

12. Where it is charged in foreclosure proceedings that adverse claims have been fraudulently acquired to defeat the rights of the mortgagee, they are proper subjects for consideration.-Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 542.

13. The rule that adverse titles are not to be adjudicated in actions to foreclose mortgages does not apply when the only adverse party is in fact an agent of the plaintiff. Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 542.

14. In an action for the foreclosure of a mortgage against the mortgagor and various persons who had successively assumed the payment of the mortgage debt, an order granting a new trial as to one of the defendants, on stipulation of plaintiff and such defendant, without notice to the other defendants, is not erroneous, as the judgment in favor of the plaintiff is not res judicata, as to any issue between the defendants themselves, and such other defendants are not interested parties in the new trial of the issues raised between the plaintiff and such defendant.-Robson v. Superior Court, 171 Cal. 588, 154 Pac. 8.

15. The filing of a complaint in foreclosure is not a waiver of the judgment in a prior ejectment suit, or a recognition of the instrument in form of a deed as a mortgage, where it appears that such deed was deposited under an agreement that it should

be held for a certain time, and if the debt for which it was given as security was not then paid, the deed delivered to the grantee was in satisfaction of the debt.-Simon v. McCoy, 28 Cal. App. 523, 153 Pac. 406.

16. Form of judgment.—This section prescribes no form for the judgment. The principal object of the proceeding is to cause the sale of the incumbered property and the application of the proceeds of sale to the payment of the debt secured.-Morris v. Hartley, 26 Cal. App. 61, 146 Pac. 73. 17. New or additional security takenEffect of. The taking of new or additional security operates to destroy an existing lien only where the destruction is worked by virtue of a positive declaration of law, where it is worked by the agreement and contract of the parties, where it is worked by necessary intendment growing out of the agreement of the parties, in that the taking of the later security is inconsistent with the continued existence thereafter of the lien, and, finally, where the nature of the earlier or later security, as that it is concealed or undisclosed, gives rise to a situation where it would partake of fraud upon other claimants to permit the earlier lien to be held valid, whereupon equity interposes and declares it to have been waived or lost by the taking of later security, or what is in effect the same, erects a bar to its enforcement.-Martin v. Becker, 169 Cal. 301, Ann. Cas. 1916D 176, 146 Pac. 665.

18. The law never contemplated that because a man had taken a mortgage he could not take other independent security for his debt, and, if the contract for such security permitted it, enforce such contract without reference to the mortgage debt.-Martin v. Becker, 169 Cal. 301, Ann. Cas. 1916D 176, 146 Pac. 665.

19. A materialman does not lose his right to a mechanic's lien by taking a mortgage upon the real property of the contractor for the value of the material sold to him, either by virtue of section 726 of the Code of Civil Procedure, or by the application of any rule of decision holding that the taking of either security destroys the right to such lien.-Martin v. Becker, 169 Cal. 301, Ann. Cas. 1916D 176, 146 Pac. 665.

20. Personal action for deficiency.-The holder of promissory notes secured by a mortgage on personal property is not precluded by section 726 of the Code of Civil Procedure from bringing and maintaining a personal action for the balance due on the notes, after having made a sale of the property under the power contained in the mortgage, and giving the mortgagor credit therefor, as in such a case the notes are not "secured" by mortgage at the time of the commencement of the action.-J. I. Case Threshing Machine Co. v. Copren Bros., 32 Cal. App. 194, 162 Pac. 647.

21. In such an action, the refusal to instruct the jury that if they believed from the evidence that the plaintiff elected to sell the engine (the mortgaged property) at public auction at the time and place men

tioned in the notices of sale posted by it but did not so make said sale at public auction, then their verdict should be for the defendants, is prejudicial error, where the only evidence offered of a sale at the time and place stated in the notices was that of the plaintiff; and the defendants offered evidence of their presence at the place of sale at the time mentioned in the notices and that no sale was then made.-J. I. Case Threshing Machine Co. v. Copren Bros., 32 Cal. App. 194, 162 Pac. 647.

22. In such an action the question as to whether the property was sold goes to the foundation of the plaintiff's cause of action, and the fact that the defendants were given credit for the sum alleged to have been bid, and were therefore uninjured by what was in fact done, is immaterial.-J. I. Case Threshing Machine Co. v. Copren Bros., 32 Cal. App. 194, 162 Pac. 647.

§ 731.

1. Nuisance-Jurisdiction where acts are crime as well as nuisance.-While a court of equity has no jurisdiction to enjoin the commission of acts which, if committed, such as the indecent exposure defined in section 311 of the Penal Code, yet where the threatened acts in addition to being an indictable offense also constitute a public nuisance courts of equity are vested with jurisdiction to interpose their injunctive process to prevent injury which will result from the maintenance thereof.-Weis v. Superior Court, 30 Cal. App. 730, 159 Pac. 464.

2. What may be abated. Any act which is an offense against public decency, or any public exhibition which is offensive to the senses, whether of sight, sound, or smell, or which tends to corrupt public morals or disturb the good order and welfare of society is a public nuisance for the abatement of which the district attorney may bring an action in the name of the people.-Weis v. Superior Court, 30 Cal. App. 730, 159 Pac. 464.

§ 738.

QUIETING TITLE.

1, 2. As to title that may be quieted.

3. Condition precedent to bringing action.

4. Defendant's right-Answer.

5. Necessity for cross-complaint.

6, 7. Jury trial.

8. Evidence.

9. Ownership of easement.

10, 11. Proceedings under McEnerney Act.

1. As to title that may be quieted.--A court of equity may entertain an action to quiet title to water not immediately available and may grant appropriate relief.-Byington v. Sacramento Vall. W. S. C. Co., 170 Cal. 124, 148 Pac. 791.

2. The right of a stockholder in a mutual water company (under C. C. section 324) by virtue of his ownership of stock to receive a specified quantity of water for certain land is real property, and conflicting claims arising thereunder may be made the

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5. - Necessity for cross-complaint. While it is settled that a defendant called upon by plaintiff's action to quiet title to land to set up his own claim of title, may file a cross-complaint setting up his own alleged ownership and asking that he be adjudged the owner, or may do the same thing in his answer, ordinarily no such practice is essential to his protection, as a conclusion against the plaintiff upon the issues raised by the complaint and answer fully determines the title as between the parties, and protects the defendant against any claim of the plaintiff as to title as fully as an affirmative decree in his favor would do.Larkin v. Superior Court, 171 Cal. 719, 154 Pac. 841.

6.

Jury trial. In a simple action to quiet title by a plaintiff in possession, in which the judgment for the plaintiff made no mention of possession, the defendant was not entitled to a jury trial.-Cobe v. Crane, 173 Cal. 116, 159 Pac. 587.

7. The refusal to grant a jury trial in an action to quiet title is not erroneous, where the complaint alleges the possession of the plaintiff and no denial thereof is made by the answer.-Fuller v. Kelly, 28 Cal. App. 160, 151 Pac. 749.

8. Evidence. Where, in an action to quiet title, it is admitted at the trial that the plaintiff was the owner of the land, except so far as her title may have been divested by virtue of a deed executed pursuant to proceedings had under the "Street Opening Act of 1903" it is not error to admit the deed in evidence, without pleading and independent proof of the adoption of the ordinance declaring the intention to open the street, or of the ordinance ordering the improvement to be made.-Tilton v. Russek, 171 Cal. 731, 154 Pac. 860.

9. Ownership in easement.-In an action to quiet title, it is competent under an allegation of ownership in fee of a right of way for railroad purposes to find an ownership of an easement.-Gordon v. Cadwalader, 172 Cal. 254, 156 Pac. 471.

10. Proceedings under McEnerney Act.— A suit under the McEnerney Act does not imply the destruction of all the records, which by any possibility may have reference to the property to which the plaintiff seeks to quiet title against all persons, but such an action lies whenever the records of the

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county have been lost or whole or in any material part," and, therefore, the existence of parts of the records does not absolve a party claiming an interest in property from the duty of availing himself of the information open to him regarding such an action, where it is conducted with all the prescribed formalities.—Dowling v. Spring Valley Water Co., - 162 Pac. 894. 11. A complaint in equity to set aside in part a decree quieting title to real property in San Francisco, pursuant to a proceeding under the statute commonly known as the "McEnerney Act," on the ground that neither the plaintiff nor his predecessor in interest had any notice or knowledge of the pendency of the quiet title action, and that the agents of the plaintiff in such action falsely swore that they knew of no adverse claimants to the property, fails to state a cause of action, where it is alleged only on information and belief that the predecessor in interest of the plaintiff was without notice or knowledge of the pendency of the action, and that the persons making the statements on behalf of the plaintiff in the action to quiet title knew the same to be false and untrue.-Dowling v. Spring Valley Water Co., Cal. - 162 Pac. 894.

§ 749[a].

1. Determining adverse claims-Conditions precedent.-Even though the lien of a mortgage may have become extinguished the mortgagor can not quiet his title to the mortgaged premises under this and sections 750 and 751, as against the mortgagee without paying the mortgage debt.-Bulson v. Moffatt, 173 Cal. 685, 161 Pac. 259.

§ 752.

1.

Partition among cotenants.—A suit in partition under our code is, in its nature and essence, equitable, just and proper, and will not only allot to a cotenant that part of the common land upon which he has valuable improvements, but will also set apart a specific tract to the share of a cotenant who has undertaken to convey the title in fee to such tract in severalty, so that the grantee may have that which is justly his, when such disposition of the land can be made without material injury to the rights and interest of the other cotenants.-East Shore Co. v. Richmond Belt R., 172 Cal. 174, 155 Pac. 999.

2. Right to partition-Postponement of. -Partition of land held in common will not be denied until such time as the same will result in the fullest profit to both parties, since ordinarily, if the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, his right to partition is absolute.-Rich v. Smith, 26 Cal. App. 775, 148 Pac. 545.

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decision, some of the common owners made deeds purporting to convey to third persons, in severalty, the whole title to specific parcels of the common land, it is not error, so far as such an appealing tenant is concerned, to open the case after the evidence had been closed and the cause submitted, and allow proof to be made of such conveyances, as they involved only the relative rights of the grantees and grantors in the share set apart by the partition to the grantors.-East Shore Co. v. Richmond Belt R., 172 Cal. 174, 155 Pac. 999.

§ 763.

1. Partition-Sale when.-There is a presumption that land held in common tenancy can be equitably divided. It is only where the contrary "appears by the evidence" that a sale may be ordered. Therefore one who, upon appeal, contends for a sale, instead of a partition as ordered, must show that it appears by the evidence that a partition would prejudice the owners. The burden of proof to show such prejudice rests on him.-East Shore Co. v. Richmond Belt R., 172 Cal. 174, 155 Pac. 999.

§ 764.

1. As to method of partition.-The grantee of each parcel is entitled to have the same set off to him out of the share of his grantor, if it can be done without injury to the other tenants in common; but, the fact that he owns contiguous land which will make his ownership of the specific parcel more advantageous to him, can not justify the allotment thereof to him, if to do so would in fact materially injure another tenant in common.-East Shore Co. v. Richmond Belt Ry., 172 Cal. 174, 155 Pac. 999.

2. Contribution and subrogation.—In the event that foreclosure proceedings become necessary by reason of the failure of the owners in severalty of the mortgaged property to contribute equally to the payment of the mortgage debt, the particular owner who may be compelled to pay the entire debt will be rightfully and readily subrogated, to the extent of the excess payment, to the interests of the mortgagee in a proper proceeding instituted for that purpose.-Rich v. Smith, 26 Cal. App. 775, 148 Pac. 545.

3. When one tenant in common has paid a debt or obligation for the benefit of the joint property, or has discharged a lien or assessment imposed upon it as a common burden, he is entitled as matter of right to have his cotenant, who has received the benefit of it, refund to him his proportionate share of the amount paid, and it is proper to provide in the decree of partition that the share of the latter be charged with a lien therefor.-Rich v. Smith, 26 Cal. App. 775, 148 Pac. 545.

§ 765.

1. Objection to referee's report.-Where referees in partition proceedings do not comply with the interlocutory decree, and

hence do not preserve the rights of all parties in interest, objection to their report will afford ample remedy to the party claiming to be aggrieved thereby.-Rich v. Smith, 26 Cal. App. 775, 148 Pac. 545.

§ 766.

1. Decree, effect of.-A decree in partition has no other effect than to sever the unity of possession, and does not vest in either of the cotenants any new or additional title.-Potrero Nuevo Land Co. V. All Persons, 29 Cal. App. 743, 156 Pac. 876.

§ 783.

1. Who may purchase. The rule forbid ding a trustee to purchase at his own sale does not apply to a purchase at a partition sale, made pursuant to a decree in equity of a court of foreign jurisdiction, which has acquired jurisdiction of the parties, notwithstanding the property was distributed "in trust" in a probate proceeding by a court of this state.-Plant v. Plant, 171 Cal. 765, 154 Pac. 1058.

$784.

1. Objections, time for.-The time for a cotenant to make objections to findings in partition is when the report of the referees is made to the court.-East Shore Co. v. Richmond Belt Ry., 172 Cal. 174, 155 Pac.

999.

§ 785.

1. Title of purchaser.—The sale under a partition decree is a judicial sale, and the rule in execution sales is applicable that the purchaser "takes the precise interest of the defendant, and after-acquired title by the seller does not pass to the purchaser." -Potrero Nuevo Land Co. v. All Persons, 29 Cal. App. 743, 156 Pac. 876.

2. Under a partition sale made by the holders of ninety-nine year terms in beach and water lots of the city and county of San Francisco, the purchasers acquire the interests of the partitioners at the time and nothing more, and the purchase by one of them subsequent to the partition sale of the reversionary interests of the state therein, does not inure to the benefit of his copurchasers.-Potrero Nuevo Land Co. v. All Persons, 29 Cal. App. 743, 156 Pac. 876.

$ 802.

1. Scire facias.-While it is true that scire facias for the purpose of obtaining execution is ordinarily a judicial writ to continue the effect of the former judgment, yet it is in the nature of an action because the defendant may plead to it, and in many cases it has been classified as, in substance, a new action.-Thomas v. Lally, 28 Cal. App. 308, 152 Pac. 53.

2. A judgment upon a scire facias is in legal effect a new judgment, and the statute of limitations begins to run from its date anew. Thomas v. Lally, 28 Cal. App. 308, 152 Pac. 53.

§ 803.

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 a 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.

§ 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.

§ 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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