ment of the amount of the consideration and interest, do not of themselves, in the absence of other circumstances, create a mortgage, but only a defeasible purchase, which should be narrowly watched lest it may be made the means of converting what was in fact intended as security into an absolute purchase. Hickor v. Lowe, 10 Cal. 197.

7. Whether a conveyance, absolute in form, executed in consideration of a precedent debt on the part of the grantor to the grantee, and an agreement executed at the same time by the grantee to reconvey the premises to the grantor upon payment of the consideration, with interest and expenses, taken together constitute a mortgage or a conditional sale, depends upon the fact whether the debt was discharged by the conveyance or subsisted afterwards. Id.

8. The only difficulty which arises, where there is an absolute conveyance with an attendant agreement to reconvey, is to ascertain the fact whether the debt subsists or has been extinguished; and where there is no doubt on this point, Courts of Equity lean in favor of the right of redemption, and construe instruments as constituting a mortgage rather than a conditional sale. Id.

9. A provision in an agreement for a reconveyance, upon the payment of the precise amount of the consideration and a stipulated monthly interest thereon, is a circumstance favoring the conclusion that the debt subsisted. Id.

10. It is not necessary, to constitute a mortgage, that it should appear upon the face of the papers that there was any personal obligation on the part of the mortgagor to pay the amount of the principal and interest. Such obligation would only enable the mortgagee to look to the mortgagor for any deficiency remaining after the application of the proceeds of sale of the premises to the payment of the sum secured. Id.

11. Slight circumstances will determine the transaction to be one mortgage, when that can be done without violence to the understanding of the parties. Id. 12. A deed of land from A. to F., reciting the consideration at one hundred dollars, and a contract from F., not under seal, not acknowledged or recorded, agreeing to reconvey the land to A. upon payment within a given time of $8,600, with interest at a specified rate, deducting the rents and profits of the land during the period limited for payment, were delivered between the parties at the same time. This contract contained a provision that it should be treated only as a contract to convey, and not as an acknowledgment that the deed was intended as a mortgage. The real consideration of the deed was a preexisting indebtedness of $8,600 due from A. to F.: Held, that this deed is not in effect a mortgage; that the question is one of intention to be gathered from the whole transaction; that although the consideration of the deed was an antecedent debt, yet the legal inference is that the debt was discharged upon the execution of the deed, and the provision in the contract to reconvey, as to not treating the deed as a mortgage, confirms this inference; and it was competent for the parties to insert such a provision. People ex rel. Ford v. Irwin, 18 Cal. 117.

13. Mortgage, who may make.-The property of the wife may be mortgaged, by joint deed of herself and husband, for the debt of the husband. De Leon v. Higuera, 15 Cal. 483.

14. The wife cannot mortgage her separate real estate, unless her husband unites in the conveyance in the mode prescribed by our statute-at least, as to property acquired after the passage of the statutes; and these statutes, when operating in futuro, are constitutional. Harrison v. Brown, 16 Cal. 287.

15. But the fact that the husband abandons his wife, or suffers her to act as a femme sole and take care of herself, does not give her a right to mortgage either his or her separate property, whatever may be the effect of such acts of the husband in rendering her personally liable for her contracts. Id.

16. The Act of February 14th, 1855, (Wood's Dig. 490) makes an exception in case the husband be not, and for one year next preceding the execution of the conveyance of the wife has not been, bona fide residing in this State. Id.

17. The trustee of a naked trust has no power to mortgage the trust estate. Griffin v. Blanchar, 17 Cal. 70.

18. A corporation may bind itself by a note and mortgage, made by its president and secretary, and signed by them in their official capacity as such. Rowe v. Table Mountain Water Co., 10 Cal. 441.

19. A mortgage of the homestead of the family, executed by the husband only,

is void. To make such a mortgage valid, the wife should join with the husband in the execution of it. Lies v. De Diablar, 12 Cal. 327.

20. Where husband and wife execute a note and mortgage, the note is good as to the husband, even if void as to the wife; and the property is bound by the mortgage, independent of the note of the wife. Pfeiffer v. Riehn, 13 Cal. 643.

21. A married woman cannot make an assignment of a mortgage, without the concurrence of the husband. [The property was common.-REP.] Tryson v. Sutton, 13 Cal. 490.

22. A married woman has no power to execute a mortgage to secure the payment of a promissory note, given by her as a femme covert. Simpers v. Sloan, 5 Cal. 458.

23. Nature of mortgage securities, and their relation to the debt secured.-The original character of mortgages has undergone a change. They have ceased to be conveyances, except in form. They are no longer understood as contracts of purchase and sale between the parties, but as transactions by which a loan is made on the one side, and security for its repayment furnished on the other. They pass no estate in the lands, but are mere securities; and default in the payment of the money secured does not change their character. McMillad v. Richards, 9 Cal. 365.

24. The settled doctrine of equity now is, that a mortgage is a mere security for a debt, and passes only a chattel interest; that the debt is the principal, and the land the incident; that the mortgage constitutes simply a lien or incumbrance; and that the equity of redemption is the real and beneficial estate in the land, which may be sold and conveyed by the mortgagor in any of the ordinary modes of assurance, subject only to the lien of the mortgage.. Id.; Nagle v. Macy, Id. 426; Goodenow v. Ewer, 16 Id. 461.

25. A mortgage does not vest in the mortgagee any estate in the land, either before or after condition broken. Payment after default operates to discharge the lien equally with payment at the maturity of the debt. Johnson v. Sherman, 15 Cal. 287; Godfrey v. Caldwell, 2 Id. 489.

26. The mortgage being a mere security for a debt, it must follow that the payment of the debt, whether before or after default, will operate as an extinguishment of the mortgage. McMillan v. Richards, 9 Cal. 365.

27. Where property is mortgaged to secure two notes, falling due at different periods, and the mortgage is foreclosed by suit upon the note first falling due, and then, after the period for redemption has passed, but before the Sheriff has executed his deed to the purchaser, this first note, or rather the judgment thereon, is paid: Held, that the payment of this note effected the redemption of the property, and left it subject to the mortgage to secure the second note. Hocker v. Reas, 18 Cal. 650.

28. A tender of the money due on a bond and mortgage, after the law day of the mortgage, and a refusal to accept the money, do not discharge the lien of the mortgage. Perre v. Castro, 14 Cal. 519.

29. The debt and mortgage are inseparable. The latter must follow the former. As distinct from the debt, the mortgage has no determinate value, and is not a subject of transfer. Nagle v. Macy, 9 Cal. 426.

30. The character of a mortgage, as security, is in no way affected by the fact that judgment for the debt has been obtained. Id.

31. If a mortgage at the beginning, the instrument always remains a mortgage. Lee v. Evans, 8 Cal. 424.

32. The indorsement and delivery of one of two notes secured by a mortgage, carries with it a pro rata portion of the security. Phelan v. Olney, 6 Cal. 478.

33. When the holder of the second note and assignee of the mortgage entered a discharge of the mortgage and took a new security, the discharge was valid as to him, and divested his lien under the mortgage, though void as to the holder of the first note. Id.

34. Where a new note, on the same terms, between the same parties, for the same sum, and of the same date, is given as a substitute for a previous note secured by mortgage, the owner is entitled to a foreclosure on the new note. Spring v. Hill, 6 Cal. 17.

35. R., an unmarried man, executed two mortgages upon a lot of land. Subsequently, he marries, and then executes a new mortgage to persons who pay off

the first mortgages, upon their being released. The release of the old, and the execution of the new mortgage, were on the same day. The wife did not sign the new mortgage: Held, that, in equity, the transaction is an assignment of the first mortgages in consideration of the money advanced by the second mortgagees; not the creation of a new incumbrance, but changing the form of the old. Swift v. Kraemer, 13 Cal. 526.

36. Where a judgment is rendered against A and his sureties, and A and a portion of his sureties, in order to secure the payment of said judgment, mortgage their property; subsequent to which, an execution under the judgment is levied upon sufficient property of B, a surety not joining in the mortgage, to satisfy the judgment, and afterwards is voluntarily released: Held, that no action can be maintained on the mortgage, for the levy satisfying the judgment, the mortgage, as an incident thereto, must also be thereby satisfied. People v. Chisholm, 8 Cal. 29. 37. Cases cited as to whether and when payment of money due on a mortgage operates as a discharge or an assignment of the mortgage. Guy v. Du Uprey, 16 Cal. 135.

38. Where a mortgagee released a mortgage made by two parties, and took a new mortgage made by one, to whom the other had meanwhile sold, the new mortgage being for a less sum, by five hundred dollars, paid at the time, and bearing a different rate of interest, it will require clear evidence of fraud to induce a Court of Equity to interfere, and give the mortgage priority over intervening liens. Dingman v. Randall, 13 Cal. 512.

39. He who has the right to the note has undoubtedly the right to foreclose the mortgage, though not made to himself. Ord v. McKee, 5 Cal. 516.

40. Notice and priority.-The object of laws which require deeds and mortgages to be recorded is to prevent imposition upon subsequent purchasers and mortgagees, in good faith, and without notice of the prior deed or incumbrance; but not to protect them when they have such notice.-Per Bennett, J. Woodworth v. Guzman, 1 Cal. 203.

41. A party holding under an assignment of a recorded lease, containing a mortgage clause, is bound to know the contents thereof, and is, therefore, subject to the mortgage, although the instrument is recorded in the book of leases, there being a privity of estate. Barroilhet v. Battelle, 7 Cal. 450.

42. A prior unrecorded mortgage has priority of lien over a subsequent recorded mortgage, where the second mortgagee had notice of the existence of the first incumbrance; and this was so, as well before as since the enactment of the statute by which the common law was adopted in California. Woodworth v. Guzman, 1 Cal. 203.

43. A subsequent purchaser of property mortgaged, with actual notice of the mortgage, cannot object to defects in the registry thereof. De Leon v. Higuera, 15 Cal. 483.

44. A mortgage made anterior to the passage of the act concerning conveyances was not recorded in accordance with the provisions of the forty-first section of said act: Held, that it lost its priority as against a subsequent purchaser without notice. Lick v. O'Donnell, 3 Cal. 39.

45. An unrecorded mortgage has priority over a mechanic's lien, which attached subsequently to the execution of the mortgage. Rose v. Munie, 4 Cal. 173.

46. Where A mortgaged a lot of land for five hundred dollars, and afterwards conveyed the same to B, a femme sole, in trust for her children, and A then married B, and the two together borrowed an additional sum, and executed a joint mortgage for the whole amount to the assignee of the first mortgage, and the note for the first debt was surrendered, though the mortgage was not canceled; and the debt was again increased, and the last mortgage canceled, and a new one for the increased amount executed by A and B: Held, that the holder of the last note and mortgage was entitled to a judgment thereon, and to a decree of foreclosure and sale, for the amount of the first note and mortgage. Birrell v. Schie, 9 Cal. 104.

47. Mortgagee in possession, rights of.-Possession by the mortgagee cannot abridge, enlarge, or otherwise affect his interest, nor convert that which was previously a security into a seizin of the freehold. Nagle v. Macy, 9 Cal. 426.

48. If the mortgage confers no right of possession, entry under it can give none. It does not change the relation of debtor and creditor, or impair the estate of the mortgagor, but leaves the parties exactly as they stood previous to such possession. Id.

49. A mortgagee in possession is not entitled to make any charge by way of compensation for his trouble in managing the property and collecting and receiving the rents. Benham v. Rowe, 2 Cal. 387.

50. It is the duty of a mortgagee in possession to exercise the same care and supervision over the property as a prudent man would over his own. And if such mortgagee act in bad faith toward the owner, or is guilty of gross negligence, such as will greatly injure the owner, he is liable to such damages as a jury may assess. Id.

51. A mortgagee of land in possession must account for rents and profits; and after payment of the debt for which the mortgage was given, he becomes, by operation of law, trustee of the surplus for the mortgagor. Pierce v. Robinson, 13 Cal. 116.

52. A stipulation that a party should be protected for his advance of money, to be expended in building upon a mortgaged lot, by the mortgagee, is a promise to repay the money, so expended, out of the mortgaged premises; and such contract is obligatory upon an assignee of the mortgage with notice. Godeffroy v. Caldwell, 2 Cal. 489.

53. Foreclosure a proceeding in equity.—A suit for the foreclosure of a mortgage is peculiarly an equity proceeding; and when a District Court gains jurisdiction of the case for the purpose of foreclosure, it has the right to give full relief; and for this purpose, to decree and execute a sale of the mortgaged premises. But when the claim has been presented to the administrator and Probate Court, and allowed, it is otherwise. Belloc v. Rogers, 9 Cal. 123.

54. Adverse titles to the premises held by parties claiming by conveyance from the mortgagor prior to the mortgage, or from third parties prior or subsequent to the mortgage, are not the proper subjects of determination in the suit. Such titles must be settled in a different action, giving rise, as they generally do, to questions of purely legal cognizance. San Francisco v. Lawton, 18 Cal. 465. 55. The nature of the right to foreclose, stated. 56. Where the plaintiff, being the owner of an undivided one-half of a tract of land, mortgaged his interest therein to A, and subsequently, with his cotenant, conveyed the land to B and C-two-thirds to one, and one-third to the other-by two separate deeds, in each of which is set forth the agreement of the grantees to assume the payment of the mortgage; and after the mortgage fell due, the plaintiff filed his bill against B and C, to compel a foreclosure and payment: Held, that the case was one of chancery jurisdiction, and that it was not necessary for plaintiff first to pay off the mortgage before bringing his action. Abel v. Coons, 7 Cal. 105.

mortgagor's right to redeem, and of the mortgagee's Goodenow v. Ewer, 16 Cal. 461.

57. When a party made defendant in a foreclosure suit, as claiming some interest in the land, sets up, as a full defense, a tax title, he cannot object afterwards that equity has no jurisdiction over tax titles. Kelsey v. Abbott, 13 Cal. 609.

58. Receiver of rents, etc., will not be appointed pending suit. In a foreclosure suit, the plaintiff has no right to have a receiver of rents and profits of the mortgaged property appointed pending the litigation. Guy v. Ide, 6 Cal. 99.

59. Parties plaintiff to a suit of foreclosure.-The question whether the plaintiff had the right to go into equity, and foreclose the mortgage given to the principal to secure the note, depends upon the fact whether he was really interested in the subject matter. Ord v. McKee, 5 Cal. 515.

60. Where a mortgage is given to secure the separate debts of several persons as mortgagees, it is a several security, and may be enforced by each creditor, as in case of a separate mortgage. But when other parties are interested in the property, the Court will require them to be brought in before ordering a sale or foreclosure. Tyler v. Yreka Water Co., 14 Cal. 212.

61. Where thirteen persons made a joint and several promissory note, payable to three of their number, and all joined in the execution of a mortgage to secure

the payment of the note-the plaintiffs being both payers and payees in the note, and mortgagors and mortgagees in the mortgage-and, subsequently, the payees of the note brought suit against the other makers, and for a foreclosure of the mortgage: Held, that the suit was properly brought, and plaintiffs were entitled to a judgment of foreclosure. McDowell v. Jacobs, 10 Cal. 387.

62. Where an assignment of a note and mortgage has been made to plaintiffs to indemnify them as sureties on a bail bond for the assignor, and where suit is then pending on such bond, is proper for them, as such assignees, to institute suit on the note and mortgage; and a decree of foreclosure in such case, with directions to pay the money into Court, to await the further decree of the Court, is proper, or at least, there is no error in such a decree to the prejudice of the defendants. Hunter & Davis, v. Levan and Wife, 11 Cal. 11.

63. A mere stranger, who voluntarily pays money due on a mortgage, and fails to take an assignment thereof, but allows it to be canceled and discharged, cannot afterwards come into equity, and in the absence of fraud, accident, or mistake of fact, have the mortgage reinstated, and himself substituted in the place of the mortgagee. Guy v. Du Uprey, 16 Cal. 135.

64. A note was executed to O., as the agent of M., and the mortgage to secure the note was made to M. O., under a contract with M., was entitled to one-half of the note: Held, that O., having a right to the note, had a right to foreclose the mortgage. 5 Cal. 516.

65. Parties defendant.-The general rule of Courts of Equity in foreclosure suits is, that all persons materially interested should be made parties, in order that complete justice may be done and multiplicity of suits avoided. Montgomery v. Tutt, 11 Cal. 307.

66. It is not absolutely essential in all cases to make subsequent incumbrancers, prior to suit of foreclosure, parties to the suit. If not so made, they are not bound by the decree; but they are not necessary parties to a decree as between the mortgagor and mortgagee; and in many cases, where the value of the property is less than the mortgage, it may be unimportant to the mortgagee to make them parties, and it would be a great hardship to compel him to make them so. Id.

67. A mortgagor, when he has not disposed of his interest, is a necessary party to a suit for a foreclosure and sale, under the law, even though no personal claim be asserted against him. If he has parted with the estate, his grantee stands in his shoes, and possesses the same right to contest the lien, and to object to the sale. And if the grantee be not made a party, the purchaser under the decree acquires no title. Goodenow v. Ewer, 16 Cal. 461; Boggs v. Hargrave, Id. 559. 68. A foreclosure suit, under our system, is only a proceeding for the legal determination of the existence of the lien, the ascertainment of its extent, and the subjection to sale of the estate pledged for its satisfaction. Upon the validity and extent of that lien, the owner of the estate, whether mortgagor or his grantee, has a right to be heard, and no valid decree for the sale of the estate can pass until this right has been afforded to him. Boggs v. Hargrave, 16 Cal. 559.

69. A subsequent purchaser of land mortgaged is a proper, if not a necessary, party to a foreclosure suit; and if the complaint be faulty, in praying to hold him as trustee of the mortgagor, on account of fraud in the purchase, such defect cannot be reached by demurrer. De Leon v. Higuera, 15 Cal. 483.

70. A person claiming an interest in mortgaged premises, subsequent to the mortgage, is a proper party to the foreclosure suit; but cannot be subjected to the costs of the foreclosure beyond those occasioned by his own separate defense. Luning v. Brady, 10 Cal. 265.

71. Where, in suit against husband and wife to foreclose a mortgage given by the husband, and also to set aside a conveyance of the property from him to her, for fraud, the inference from the language of the complaint is that the conveyance was made in the ordinary form of conveyance on purchase, and during marriage; and the wife demurs, on the ground that facts sufficient to constitute a cause of action against her are not set out, in this, to wit: that the facts and circumstances constituting the fraud are averred in general terms only; and that there is a misjoinder of parties, in making her a defendant: Held, first, that if she claimed the premises as her separate property by virtue of the conveyance from her husband, that circumstance was sufficient to justify plaintiff in making her defendant; second, that it was immaterial whether the conveyance to the wife was