3503. Property sold under foreclosure subject to redemption. Sales of real estate under judgments of foreclosure of mortgages and liens are subject to redemption as in case of sales under execution. [C. L. § 3460. in possession, ?? 2885-2886. Redemption after execution sale, 22 3260-3270. Redemption after sale under trust deed, ? 3271. Cal. C. Civ. P. 2726. See Sup. '93, p. 970; Sup. '95, p. 24. Limitation on action to redeem against mortgagee 3504. No greater attorney's fee allowed than actually charged. In all cases of foreclosure when an attorney or counsel fee is claimed by the plaintiff, no other or greater amount shall be allowed or decreed than the sum which shall appear by the evidence to be actually charged by and to be paid to the attorney for the plaintiff; and if it shall appear that there is an agreement or understanding to divide such fees between the plaintiff and his attorney, or between the attorney and any other person except an attorney associated with him in the cause, only the amount to be retained by the attorney or attorneys shall be decreed as against the defendant. ['94, p. 25. 3505. Attorney's fee fixed by court in all cases. In all cases of foreclosure by proceeding in court, the attorney's fee shall be fixed by the court in which the proceedings of foreclosure are had, any stipulation in said mortgage to the contrary notwithstanding. Cal. C. Civ. P. following 726. CHAPTER 60. ACTIONS FOR NUISANCE, WASTE, ETC. 3506. Nuisance defined. Who may bring action. Abatement. Damages. Anything which is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action. Such action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance; and by the judgment the nuisance may be enjoined or abated, as well as damages recovered. [C. L. § 3463. Cal. C. Civ. P. ? 731. 3507. Who may sue for waste. Treble damages. If a guardian, tenant for life or years, joint tenant, or tenant in common of real property, commit waste thereon, any person aggrieved by the waste may bring an action against him therefor, in which action there may be judgment for treble damages. § 3464. Cal. C. Civ. P. 2732. [C. L. Duty of guardian, 4006. A tenant in common or a joint-tenant may sue his co-tenant, 2919. 3508. Injuries to trees. Who may sue. Treble damages. Any person who cuts down, or carries off, any wood or underwood, tree or timber, or girdles or otherwise injures any tree or timber on the land of another person, or on the street or highway in front of any person's house, village or city lot, or cultivated grounds, or on the commons or public grounds of any city or town, or on the street or highway in front thereof, without lawful authority, is liable to the owner of such land, or to such city or town, for treble the amount of damages which may be assessed therefor, in a civil action in any court having jurisdiction. [C. L. § 3465. Cal. C. Civ. P. 2733. Injuring or destroying trees, a misdemeanor, damages, ?? 1142, 1144. 3509. Id. Damages limited if timber used for highways, etc. Nothing in the last section authorizes the recovery of more than the just value of the timber taken from uncultivated woodland for the repair of a public highway or bridge upon the land, or adjoining it. [C. L. § 3466. Cal. C. Civ. P. 734. 3510. Treble damages for forcible entry, etc. If a person recover damages for a forcible or unlawful entry in or upon, or detention of, any building or any cultivated real property, judgment may be entered for three times the amount at which the actual damages are assessed. [C. L. § 3467. Cal. C. Civ. P. 2 735. Treble damages in forcible entry, etc., proceedings, 3584. 3511. CHAPTER 61. ACTIONS TO QUIET TITLE, ETC. Action to determine adverse claim. An action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim. [C. L. § 3468. Cal. C. Civ. P. 2 738. See Sup. '95, p. 25. Action to determine adverse claim to real or personal property, 3491. Action brought in county where property situated, ?2928. For purposes of this action the possession of the executor is the possession of the heirs, 3913. Adverse possession, 222862-2866. Possessory rights, 1967. Parties, ??2913, 2914. Action by party out of possession to determine adverse claim, parties, judgment, ? 2915. Equitable defense may be set up in ejectment, but such defense must contain all the essentials of a bill in equity, and the issue thus made is triable by the court. This rule does not avail a plaintiff who bases his claim on a legal title, and is met by a superior legal title of defendant; in such case he cannot be permitted to attack the title of defendant on purely equitable grounds. Kahn v. Old Telegraph Mining Co., 2 U. 174. Attack on U. S. patent. Id. Defense of possession under alleged contract of purchase; under circumstances, nonsuit granted. Jones v. Memmott, 8 U. 212; 30 P. 752. When a party has title to a lot including alley way, and has a building on same except alley, there being no adverse possession, he has such a possession as to entitle him to maintain an action to quiet title under section 3468, C. L. 1888. Goldberg v. Taylor, 2 U. 486. The words "claims an estate or interest," in section 3468, C. L. 1838, are used in a broad sense, and are not technical in their meaning. They are evidently intended to embrace every species of adverse claim set up by a party out of possession. Id. A patent from the United States for mineral land may be avoided in equity for mistake, or fraud and misrepresentation practiced upon the government; but whether this may be done in an action to which the United States is not a party, quære; the validity of such patent, however, cannot be questioned where no allegations of fact constituting the mistake, fraud, or misrepresentation are made in the pleadings. Parley's Park S. M. Co. v. Kerr, 3 U. 235; 2 P. 709. Where the facts show a right to specific performance merely, a decree quieting title is erroneous. Hennefer v. Hayes, and Bunce v. Same, McLaughlin v. Same, and Campbell v. Same, 14 U. 324; 47 P. 90. Where in action under section 3468, C. L. 1888, both parties plead title in themselves, evidence to show mistake in deed under which plaintiff claims is admissible, without allegation of mistake or prayer for reformation. Glasmann v. O'Donnell, 6 U. 446; 24 P. 537. 3512. If defendant disclaim or default, costs not recoverable. If the defendant in such action disclaim in his answer any interest or estate in the property, or suffer judgment to be taken against him without answer, the plaintiff cannot recover costs. [C. L. § 3469. Cal. C. Civ. P. 2 739. 3513. Termination of plaintiff's title pending action. Judgment. Damages. In an action for the recovery of real property, where the plaintiff shows a right to recover at the time the action was commenced, but it appears that his right has terminated during the pendency of the action, the verdict and judgment must be according to the fact, and the plaintiff may recover damages for withholding the property. [C. L. § 3470. Cal. C. Civ. P. 740. Alienation not to affect recovery, 3520. It was held error to instruct the jury to return a verdict for the plaintiff who had shown a deed from the Union Pacific railway to land included within its grant, where proof had not been made that the land did not fall within the exceptions to the grant. McGrath v. Tallent, 7 U. 256; 26 P. 574. Corinne M. C. & S. Co. v. Johnson, 7 U. 327; 26 P. 922. Affirmed, 156 U. S. 574. Equitable estoppel is a good defense in ejectment. Duke v. Griffith, 9 U. 469; 35 P. 512. Under a general denial and claim of title in an action of ejectment, it is competent for the defendant to show that the plaintiff had no right to enter when the suit was brought or to show want of consideration for the deed under which the plaintiff claims title and right of entry. Eastman v. Gurrey, 14 U. 169; 49 P. 310. In an action of ejectment, the question is as to who has the better title. Kahn v. Old Telegraph M. Co., 2 U. 174. In ejectment, under a claim of the defendant that he is the owner of the premises in dispute, he can support such claim by showing that he has several different titles thereto. Id. In an action of ejectment, in certain cases a patent of the U. S. may be shown to be void. Id. Exceptions. 3514. Improvement allowed as counterclaim. When damages are claimed for withholding the property recovered, upon which permanent improvements have been made by a defendant, or those under whom he claims, holding under color of title adversely to the claims of the plaintiff, in good faith, the value of such improvements must be allowed as a counterclaim against such damages, except improvements made upon mining property. [C. L. § 3471*. Col., Mills' An. C. (1896) † 258*; Cal. C. Civ. P. ¿ 741*. Improvements by occupying claimants, 2024. 3515. Order for survey of lands and mines. Notice. The court in which an action is pending for the recovery of real property, or for damages for an injury thereto, or to quiet title or to determine adverse claims thereto, or a judge of such court may, on motion, upon notice by either party, for good cause shown, grant an order allowing to such party the right to enter upon the property and make survey and measurement thereof, and of any tunnels, shafts, or drifts thereon, for the purpose of the action, even though entry for such purpose has to be made through other lands belonging to parties to the action. [C. L. § 3472. Cal. C. Civ. P. 2 742*. Postponement of trial to further develop mining claim, 3134. Limitation on action for waste or trespass upon mining claim by means of underground works begins to run on discovery, ? 2877. 3516. Id. Order and service thereof. Liability for injury. The order must describe the property, and a copy thereof must be served on the owner or occupant, and thereupon such party may enter upon the property with necessary surveyors and assistants, and may make such survey and measurement; but if any unnecessary injury be done to the property, he is liable therefor. L. § 3473. Cal. C. Civ. P. 2743. [C. 3517. Mortgage not a conveyance, whatever its terms. Foreclosure. A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale. [C. L. § 3474. Cal. C. Civ. P. 2744. 3518. Waste restrained pending foreclosure or after execution sale. The court or judge may, by injunction, on good cause shown, restrain the party in possession from doing any act to the injury of real property during the foreclosure of a mortgage thereon, or after a sale on execution, before a conveyance. [C. L. § 3475. Cal. C. Civ. P. 2 745. Injunction generally, 3058. 3519. Purchaser may recover from tenant for waste. When real property has been sold on execution, the purchaser thereof, or any person who may have succeeded to his interest, may, after his estate becomes absolute, recover damages for injury to the property by the tenant in possession, after sale and before the possession is delivered under the conveyance. [C. L. § 3476. Cal. C. Civ. P. 2746. Waste may be restrained during period of redemption, ? 3266. 3520. Alienation pending action not to prejudice recovery. action for the recovery of real property against a person in possession cannot be prejudiced by any alienation made by such person, either before or after the commencement of the action. [C. L. § 3477. Cal. C. Civ. P. 2 747. defense, 2903. Action not to abate by transfer, Assignment of thing in action not to prejudice 2920. 3521. Mining customs and rules control, when. In actions respecting mining claims, proof must be admitted of the customs, usages, or regulations established and in force in the district, bar, diggings, or camp embracing such claim; and such customs, usages, or regulations when not in conflict with the laws of this state, or of the United States, must govern the decision of the action. [C. L. § 3478. Cal. C. Civ. P. 2 748*. CHAPTER 62. PARTITION. 3522. Who may bring action for partition or sale. When several co-tenants hold and are in possession of real property as joint tenants or tenants in common, in which one or more of them have an estate of inheritance, or for life or lives, or for years, an action may be brought by one or more of such persons for a partition thereof according to the respective rights of the persons interested therein, and for a sale of such property, or a part thereof if it appear that a partition cannot be made without great prejudice to the owners. $ 3479. Cal. C. Civ. P. 752. For the purposes of partition the possession of the executor, etc., is the possession of the heirs, 3913. Tenants in common, etc., as parties, ?? 2916-2919. Waste by tenant in common, etc., [C. L. 3523. Interests of all parties must be set forth. Exceptions. The interests of all persons in the property, whether such persons be known or unknown, must be set forth in the complaint, specifically and particularly, as far as known to the plaintiff, and if one or more of the parties, or the share or quantity of interest of any of the parties, be unknown to the plaintiff or be uncertain or contingent, or the ownership of the inheritance depend upon an executory devise, or the remainder be a contingent remainder, so that such parties cannot be named, that fact must be set forth in the complaint. [C. L. § 3480. Cal. C. Civ. P. ? 753. 3524. Id. Only persons having recorded claims made parties. No person having a conveyance of, or claiming a lien on, the property, or some part of it, need be made a party to the action unless such conveyance or lien appear of record. [C. L. § 3481. Cal. C. Civ. P. 2754. 3525. Lis pendens to be filed. Notice. Immediately after filing the complaint in the district court, the plaintiff must file with the recorder of the county, or of the several counties in which the property is situated, either a copy of such complaint or a notice of the pendency of the action, containing the names of the parties, so far as known, the object of the action, and a description of the property to be affected thereby. From the time of filing such notice for record, all persons shall be deemed to have notice of the pendency of the action. [C. L. § 3482. Cal. C. Civ. P. ? 755*. Lis pendens generally, 2953. 3526. Summons, to whom directed. The summons must be directed to all the joint tenants, tenants in common, and all persons having any interest in, or liens of record by mortgage, judgment, or otherwise, upon the property, or upon any particular portion thereof, and generally to all persons unknown who have or claim any interest in the property. [C. L. § 3483. Cal. C. Civ. P. 756. 3527. Absent and unknown parties served by publication. If a party having a share or interest is unknown, or any one of the known parties reside out of the state, or cannot be found therein, and such fact is made to appear by affidavit, the summons may be served on such absent or unknown party by publication, as in other cases. When publication is made, the summons, as published, must be accompanied by a brief description of the property which is the subject of the action. [C. L. § 3484. Cal. C. Civ. P. 757. Service by publication upon unknown defendants, 22951. 3528. Answers must specifically set forth interests. Waiver. The defendants who have been personally served with the summons, or who have appeared without such service, must set forth in their answers, fully and particularly, the origin, nature, and extent of their respective interests in the property; and if such defendants claim a lien on the property by mortgage, judgment, or otherwise, they must state the original amount and date of the same, and the sum remaining due thereon, also whether the same has been secured in any other way or not, and if secured, the extent and nature of such security, or they are deemed to have waived their rights to such lien. [C. L. § 3485. Cal. C. Civ. P. 2 758*. 3529. Rights of all parties determined. Proof. The rights of the several parties, plaintiff as well as defendant, may be put in issue, tried, and determined by such action; and when a sale of the premises is necessary, the title must be ascertained by proof, to the satisfaction of the court, before the judgment of sale can be made; and where service of the summons has been made by publication, like proofs must be required of the right of the absent or unknown parties, before such judgment is rendered; except that where there are several unknown persons having an interest in the property, their rights may be considered together in the action, and not as between themselves. [C. L. § 3486. Cal. C. Civ. P. ? 759*. 3530. Partial partition, where complete partition impracticable. Whenever from any cause it is, in the opinion of the court, impracticable or highly inconvenient to make a complete partition, in the first instance, among all the parties in interest, the court may first ascertain and determine the shares or interests respectively held by the original co-tenants, and thereupon adjudge and cause a partition to be made, as if such original co-tenants were the parties and sole parties in interest, and the only parties to the action, and thereafter may proceed in like manner to adjudge and make partition separately of each share or portion so ascertained and allotted, as between those claiming under the original tenant to whom the same shall have been so set apart, or may allow them to remain tenants in common thereof, as they may desire. [C. L. § 3487. Cal. C. Civ. P. ? 760. 3531. Rights of lienholders not summoned to be adjusted. If it appears to the court by the certificate of the county recorder, or clerk, or by the sworn or verified statement of any person who may have examined or searched the records, that there are outstanding liens or incumbrances of record upon such real property, or any part or portion thereof, which existed and were of record at the time of the commencement of the action, and the persons holding such liens are not made parties to the action, the court must either order such persons to be made parties to the action by an amendment or supplemental complaint, or appoint a referee to ascertain whether or not such liens or incumbrances have been paid, or if not paid, what amount remains due thereon, and their order among the liens or incumbrances severally held by such persons and the parties to said action, and whether the amount remaining due thereon has been secured in any manner, and if secured, the nature and extent of the security. $3488. Cal. C. Civ. P. 2761. [C. L. 3532. Id. Notice to appear before referee. Publication. Report. The plaintiff must cause a notice to be served a reasonable time previous to the day for appearance before the referee appointed, as provided in the last section, |