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may not constitute a valid title; it may not, in fact, be of any value; and the purchaser takes that risk. To that extent the doctrine of caveat emptor applies, eren in those cases, and in all cases of adjudication upon specific interests; but no further. The interest specifically subject to sale, whatever it may be worth, a purchaser is entitled to receive; it is for that interest he makes his bid and pays his money. Id.

200. When a purchaser at a sale under a decree in a foreclosure suit, directing the sale of the premises—which decree was void because the grantee of the mortgagor was not made a party-brought suit against the mortgagees to recover back the money paid them on his bid—the purchaser being aware at the time of his bid that the mortgagor had sold the premises before the institution of the foreclosure suit, and there being no fraud : Held, that the action does not lie. The plaintiff must seek relief from the consequences of the invalidity of the decree by proceeding in the foreclosure suit. Id.

201. C. being in the occupation of certain premises, conveyed them to B., who executed a mortgage back to C. as security for the purchase money. The converance and mortgage were simultaneous acts, and both were of the premises in fee. The legal title was not at the time in C., and B. afterwards purchased it in, and then executed a mortgage to T.: Held, that the title subsequently acquired by B. inured to the benefit of his mortgagee, C.; and that a purchaser under the decree foreclosing T.'s mortgage could only claim in subordination to C. Clark v. Baker, 14 Cal. 612.

202. On foreclosure and sale in a case of leasehold premises under a mortgage thereof, the purchaser at the sale is not necessarily to be discharged because the ground rent is in arrear, and the lessors have given notice of intention to reënter for nonpayment. Holden v. Sackett, 12 Abb. Pr. +73.

203. It is the duty of the Sheriff, in such case, to pay out of the purchase money 80 much of the ground rent as was due and in arrear, unpaid at the time of the sale; and as to the rent payable after the sale, it is the duty of the purchaser to pay that himself. Id.

204. By well-settled rules of law, as well as by the express terms of our statute authorizing sales in foreclosure, such sale passes all the title of each and every of the parties to the suit, and the deed of the Sheriff is as effectual as if the mortgagor and mortgagee had united in a deed conveying to the purchaser their respective interests in the property, and is an entire bar against all parties to the suit. Id.

205. Where a part of mortgaged premises had been released from the mortgage, and on a foreclosure the complaint stated the release, and the decree of sale excepted the released portion from the effect of the decree, but through inadvertence the master's deed upon the sale included it: Held, that it did not convey the released portion of the premises, and could not affect the title of the real owner. The master could not convey premises which the complaint did not claim, and of which the decree did not authorize a sale. Laverty v. Moore, 32 Barb. 347.

206. In selling lands under their own decree, the Court of Chancery may be regarded as the trustee for the owners and parties in interest. And where persons appeared in the action in which the decree was rendered, representing themselves as parties thereto, and entitled to be heard, and the Court applied the proceeds of the sale to such uses as they directed, they, and persons claiming under them, must be deemed to have adopted, ratified and affirmed the sale, and all that the Court of Chancery did in the premises. (6 Hil. 4; 3 Comst. 511; 8 Wend. 483 ; 3 Hil. 215;) Requa v. Holmes, 19 How. Pr. 430, qualifying 16 N. Y. (2 Smith) 193.

207. Writ of assistance.-A writ of assistance is the appropriate remedy to place the purchaser of mortgaged premises, under a decree of foreclosure, in possession, after he has obtained the Sheriff's deed. Montgomery v. Tutt, 11 Cal. 190; Wolf v. Fleischacker, 5 Id. 244; Reynolds v. Harris, 14 Id. 677.

208. Under our system, the order to deliver possession should be first made, unless a direction to that effect is contained in the decree; and if, upon its service, that is disregarded, the Court can at once direct the writ to issue. If delivery of possession to the purchaser is directed by the decree, no preliminary order will be requisite; but upon proof of disobedience to the decree, the party will be entitled, as a matter of course, to the writ, as against the defendant in the suit. Id.

209. If a writ of assistance be improperly issued or executed, the Court granting it can, on summary motion, set aside the writ or the service, and restore the possession. Skinner v. Beatty, 16 Cal. 156.

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210. Prima facie, plaintiff in a foreclosure suit is entitled, after sale of the premises and Sheriff's deed to him, to a writ of assistance as against the mortgagor and those entering under him subsequent to the decree, if they refuse to surrender possession. Id.

211. Where, in snch case, a writ of assistance is granted, and the mortgagee and his wife move to set it aside on the ground that they had moved upon and occupied the mortgaged premises as a homestead before the execution of the mortgage by the husband, and continuously ever since, and it appears that the mortgage was given for the purchase money of the premises, the motion must be denied, even though the wife was not a party to the foreclosure. Id.

212. A purchaser at a judicial sale, under a judgment which directs that the purchaser be put in possession, is entitled to a writ of assistance if necessary, and this, notwithstanding the death of the plaintiff after judgment and before the sale. A revival of the action is not necessary. The application for a writ of assistance may be made ex parte. Lynde O'Donnell, 12 Abb. Pr. 286.

213. Vendor's lien.-A vendor has a lien on the land sold for the purchase money, unless he has taken security for its payment, though he has executed the conveyance. Salmon v. Hoffman, 2 Cal. 138.

214. And when the vendor has not conveyed the title, his position is analogous to that of a mortgagee. Id.

215. The lien which springs out of a title bond, predicated upon the covenants for the purchase money, attaches upon the land, unless expressly reserved; and if such reservation be made, it lies upon the purchaser to show it. Truebody v. Jacobson, 2 Cal. 269.

216. And if the time for payment be extended beyond the period named in the bond, this does not release the lien. Id.

217. Nor does taking a note for the purchase money affect the lien ; and if part be paid, the lien is good for the residue, and the vendee becomes a trustee for all that remains unpaid. So the lien attaching to the land, an assignment with or without notice cannot affect the rights of the vendor. ld.

218. The term within which payment may be made by the vendee to extinguish the lien is limited, and ends after a sale under a judgment for the purchase money. Id.

219. B. bought the premises in controversy, and executed a note in part payment, which was afterwards transferred to the plaintiff. Soon after the transfer, the plaintiff loaned B. an additional sum, and took his note and a new mortgage on the same lot, and his interest in another lot, and caused the first mortgage to be canceled, and satisfied of record. In a suit to foreclose the mortgage, the wife of B. intervened, and claimed the premises as a homestead : Held, that the land was liable for the remainder of the purchase money, no matter to what purpose might be devoted. Dillon v. Byrne, 5 Cal. 455.

220. The vendor's lien on the land conveyed is not lost by his taking the notes of the purchaser for the purchase money. And the lien equally exists, whether the instrument amounts to a conveyance or merely to an executory contract. Walker v. Sedgwick, 8 Cal. 398.

221. In a bill in equity to enforce the lien, it is not necessary to allege the issuance of execution, under a judgment at law previously obtained by the vendor against the purchaser for the amount due, and return of nulla bona to sustain the allegation of insolvency. Id.

222. A vendor's lien does not exist in this State, where a mortgage security is taken for the purchase money. The silent lien of the vendor is extinguished whenever he manifests an intention to abandon or not to look to it. And this intention is manifested by taking other and independent security upon the same land, or a portion of it, or on other land. Hunt v. Waterman, 12 Cal. 301.

223. The lien which the vendor of real property retains, after an absolute conveyance, for the unpaid purchase money, is not a specific and absolute charge upon the property, but a mere equitable right to resort to it upon failure of payment by the vendee. Sparks v. Hess, 15 Cal. 186.

224. The equitable right may be enforced in the first instance, and before the vendor has exhausted his legal remedy against the personal estate of the vendee. The Court, after determining the amount of the lien, can, by its decree, either direct a sale of the property for its satisfaction, and execution for any deficiency,


or award an execution in the first place, and a sale only in the event of its retum unsatisfied, as the justice of the case may require. Id.

225. If the first order of sale on a foreclosure decree be not executed, a second order may issue. Such second order might in some cases be ground of objection on the score of costs, but it is not objectionable as affecting the validity of the sale. Shores v. Scott River Water Co., 17 Cal. 626.

226. The execution of two notes for the amount due upon a note and mortgage, when the mortgage is not canceled, will not deteat an action for the foreclosure of the same, commenced after the second notes are due and unpaid. Crary v. Bowers, Jan. 1862.

227. It could not be a defense that only one note was due, as that would be sufficient to show a failure of performance. ld.

228. If the mortgage was void, this fact does not invalidate the debt intended to be secured by the mortgage. Sharer v. Bear River and Auburn Water g. Mining Co., 10 Cal. 396.


§ 247. Disposition of surplus money after sale.

If there be surplus money remaining after payment of the amount due on the mortgage, lien or incumbrance, with costs, the Court may cause the same to be paid to the person entitled to it, and in the meantime may direct it to be deposited in Court.

§ 248. Proceedings when debt falls due at different times.

If the debt for which the mortgage, lien or incumbrance is held be not all due, so soon as sufficient of the property has been sold to pay the amount due, with costs, the sale shall cease; and afterwards, as often as more becomes due for principal or interest, the Court may, on motion, order more to be sold. But if the property cannot be sold in portions, without injury to the parties, the whole may be ordered to be sold in the first instance, and the entire debt and costs paid, there being a rebate of interest, where such rebate

is proper.

See notes under $ 246.

CHAPTER II.-Actions for nuisance, waste and willful trespass, in

certain cases, on real property.

Sec. 249. Nuisance defined and actions for.

250. Waste, actions for.
251. Trespass for cutting or carrying away trees, etc., de-

tions for.
252. Measure of damages in certain cases under the last

section. 253. Damages in actions for forcible entry, etc., may


$ 249. Nuisance defined, and actions for.

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.

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1. What is nuisance.—The fact whether a structure was a public nuisance is a question, not for the Court, but for the jury to decide. Gunter v. Geary, 1 Cal. 466.

2. It is a public nuisance to erect a house in a highway. Id.

3. A house on fire, or those in its immediate vicinity which serve to communicate the flames, is a nuisance which it is lawful to abate; and the private rights of the individual yield to considerations of general convenience and the interest of society. Surocco v. Geary, 3 Cal. 73.

4. The constitutional provision which requires payment for private property taken for public use, does not apply to the destruction of a house to check a conlagration; nor can he who abates this nuisance be made personally liable for trespass, unless the act is done without actual or apparent necessity. Id.

5. The erection of a steam engine, and machinery, and a grist mill in the cellar, under an auction store, held not to be such an injury as to require a restraining power of the Court; at least, not until the question of nuisance should be determined by a jury, and even then the remedy at common law is adequate. Midilleton v. Franklin, 3 Cal. 241.

6. All that part of a bay or river below low water or low tide is a public highway common to all citizens, and if any person appropriates it to himself exclusively, the presumption is that it is a detriment to the public. Gunter v. Geary, 1 Cal. 462.

7. Where plaintiff's mining claim was overflowed by means of a dam erected by the defendants, the Court ordered a reduction of the dam so as to prevent the overflow, or if necessary, its entire abatement. Ramsay v.Chandler, 3 Cal. 241.

8. A ditch to carry off water rightfully flowing to a mining claim is as much a nuisance as a dam to flood it. Parke v. Kilham, 8 Cal. 77.

9. A person may construct or continue what would otherwise be an actionable nuisance, provided that at the commencement of it no person was in a condition to be injured by it, or in other words, mere priority as between owners of the soil gave a superior right. Tenney v. Miners' Ditch Co., 7 Cal. 339.

10. The diversion of a water-course is a private nuisance. Tuolumne Water Co. 5. Chapman, 8 Cal. 397.

11. Jurisdiction of actions concerning nuisances. — The term "special cases" in the Constitution, does not include any class of cases for which the Courts of general jurisdiction have always supplied a remedy, as in cases to abate a nuisance. Parsons v. Tuolamne County W. Co., 8 Cal. 44.

12. The statute of this State defining what are nuisances, and prescribing a remedy by action, does not take away any common law remedy in the abatement of the nuisances which the statute does not embrace. Stiles v. Laird, 5 Cal, 122.

13. The District Courts have constitutional jurisdiction of cases of nuisance. The grant of such jurisdiction by statute to the County Courts cannot take away the constitutional jurisdiction of the District Courts. Fitzgerald v. Urton, 4 Cal.


14. Actions to abate nuisances, parties, ets.-A common nuisance being deemed an injury to the whole community, every person in the community is supposed to be aggrieved by it, and has the right to abate it without regard to

the question whether it is an immediate obstruction or injury to him. A private nuisance is one which only injures a particular individual or class of individuals, and can be abated only by him who suffers from it. Gunter v. Geary, 1 Cal. 462.

15. Actions for the diversion of the waters of ditches are in the nature of actions for the abatement of nuisances, and may be maintained tenants in common in a joint action. Parke v. Kilham, 8 Cal. 49.

16. To entitle a party to an injunction in a case of a nuisance, the injury to be restrained must be irremediable, and such as cannot be adequately compensated by damages. Middleton v. Franklin, 3 Cal. 241.

17. In an action to abate a nuisance, damages are only an incident to the action, and the failure to recover them does not affect the question of costs. Hudson F. Doyle, 6 Cal. 102.

18. In action of nuisance or trespass the defendant has no right to inquire into the good faith of the plaintiff's possession. Eberhard v. Tuolumne Water Co., 4 Cal. 308.

19. In an action to abate a nuisance caused by the running a ditch for the conveyance of water across the land of the plaintiff, the defendants set up in the answer that it was mineral land belonging to the United States, and that the ditch was for mining purposes, which allegations were stricken out on motion of plaintiff's attorney: Held, that they were properly stricken out as irrelevant, for if true, they constituted no defense to the action. Weimer v. Lowry, 11 Cal. 112.

20. Plaintiffs owned certain mining claims and quartz lode on the banks of a stream above the mill and dam of defendant. Defendant commenced raising his dam two feet higher. Plaintiffs brought suit against defendant, alleging that the addition of two feet to defendant's dam was a nuisance, and would back the water on to plaintiffs' claims, and thus prevent them from working them, and would also destroy their water privilege for a quartz mill which they intended to construct: Held, that the action was premature, and that the demurrer to the complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action, was properly sustained. Harvey v. Chilton, 11 Cal. 120.

$ 250. Waste, actions for.

If a guardian, tenant for life or years, joint tenant, or tenant in common of real property, commit waste thereon, any person ag. grieved by the waste may bring an action against him therefor, in which action there may be judgment for triple damages.

1. At common law there is no forfeiture of an estate for years for the commission of waste, but it was made so by the statute of 6 Edward I, and it was expressly confined to the place wherein the waste was committed; but the statute of California confines the remedy to triple damages. Chipman v. Emeric, 3 Cal. 283.

2. In an action for waste, when triple damages are given by statute, the demand for such damages must be expressly inserted in the declaration, which must either cite the statute, or conclude to the damage of the plaintiff against the form of the statute. Id. 5 Cal. 240.

3. Injunctions to restrain injuries in the nature of waste should not be issued before the hearing on the merits, except in cases of urgent necessity, or when the subject matter of the complaint is free from controversy, or irreparable mischief will be produced by its continuance. But in all cases where the right is doubtful, the Court should direct a trial at law, and in the meantime grant a temporary injunction to restrain all injurious proceedings, if there be danger of irreparable mischief. Hicks v. Michael, 15 Cal. 116.

4. On application for injunction to restrain waste or mischief analogous to waste, plaintiff may read affidavits contradicting the answer upon all matters in controversy, including questions of title. Id.


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