It is only such as have an interest in and under the mortgagor that are necessary parties. The suit is to extinguish his title.8 The action may be maintained by one who is surety for the mortgage debt to compel payment or foreclosure.90

§ 2308. Parol evidence to vary a deed. Parol evidence is admissible at law, as well as in equity, to show that a deed, absolute on its face, was given as a security for money, and is in fact a mortgage.91

§ 2309. Power of sale in mortgage. When a mortgage contains a power of sale, the mortgagee has his election to foreclose in chancery or to sell under the power.92 Or the mortgagee, with the consent of the mortgagor, may be authorized to sell the premises to pay the debt.93 The legal title passes by the sale of the mortgaged premises, but where the mortgagee becomes the purchaser indirectly by having the premises bid off for him, the sale is voidable on application in equity by the mortgagor.94 A deed of trust, the trustee not being the creditor, but a third party, given to secure a note, and authorizing the trustee to sell the land at public auction, and execute to the purchaser a deed of the same, upon default of paying the note or interest as it falls due, and out of the proceeds to satisfy the trust generally, and to render the surplus to the grantor, etc., is not a mortgage requiring judicial sale.95

§ 2310. Receiver. The plaintiff has no right to have a receiver of rents and profits appointed during litigation.96 The Code of Civil Procedure of California provides that, when it appears that the mortgaged property is in danger of being

89 Eagle Fi. Co. v. Lent, 6 Paige Ch. 635.

90 Marsh v. Pike, 10 Paige, 595; Lawrence v. Lawrence, 3 Barb. Ch. 71; Cornell v. Prescott, 2 Barb. 16; Vanderkemp v. Shelton, 11 Paige, 28.

91 Jackson v. Lodge, 36 Cal. 23; Vance v. Lincoln, 38 id. 586; and see Mahoney v. Bostwick, 96 id. 53; 31 Am. St. Rep. 175; Locke v. Moulton, 96 Cal. 21; Perot v. Cooper, 17 Col. 80; 31 Am. St. Rep. 258.

92 Cormerais v. Genella, 22 Cal. 116.

93 Fogarty v. Sawyer, 17 Cal. 589.

94 Blockley v. Fowler, 21 Cal. 326; 82 Am. Dec. 747.

95 Koch v. Briggs, 14 Cal. 256; see, also, Civil Code, § 358; More v. Calkins, 95 Cal. 435; 29 Am. St. Rep. 128.

96 Guy v. Ide, 6 Cal. 99.

lost, removed, or materially injured, or that the condition of the mortgage has not been performed, and that the property is probably insufficient to discharge the mortgage debt, a receiver may be appointed in an action to foreclose.97

As against the mort

§ 2311. Record and acknowledgment. gagor, the allegation of record and acknowledgment is immaterial and unnecessary; or that the mortgagor has not conveyed,98 except in case of a married woman."

99

§ 3212. Relief in case of default. In a foreclosure suit, where judgment is taken by default, the decree can give no relief beyond that which is demanded in the bill.100

§ 2313. Sale under statute foreclosure. Where the agent employed by the mortgagee to sell property, sold it at a time contrary to instructions given him, and for something less than its value, it was held that the purchaser having bought in good faith without knowledge of the instructions, the courts should not set aside the sale. An attorney acting in such transaction might be treated as acting in his professional character, except where third persons are thus affected.101 A notice of sale on a statutory foreclosure need not specify that the mortgage will be foreclosed.102

§ 2314. Remedy - extent of. The party on a bill to foreclose a mortgage is confined in his remedy to the pledge. Such a suit is not intended to act in personam. It seems to be pretty generally admitted that the mortgagee may proceed at law on his bond or covenant at the same time that he is prosecuting his mortgage in chancery; and that after foreclosure he may 97 § 564, subd. 2; and see Ill. Trust & Sav. Bank v. Alvord, 99 Cal. 407, 410; Toby v. Oreg. Pac. R. R. Co., 98 id. 490, 495.

98 St. Mark's Fire Ins. Co. v. Harris, 13 How. Pr. 95.

99 Perude v. Aldridge, 19 Ind. 290; Culph v. Phillips, 17 id. 209. 100 Raun v. Reynolds, 11 Cal. 14; see, also, Code C. P., § 580. 101 Leet v. McMaster, 51 Barb. 236.

102 Id. The court has jurisdiction in an action to foreclose a mortgage to order a sale of the mortgage property by a commissioner, although the prayer of the complaint follows the usual form and asks for a sale of the mortgaged property by the sheriff, the essence of the prayer being only for a judicial sale. McDermot V. Barton, 106 Cal. 194.

sue at law for the deficiency.103 In California, however, judgment may be rendered for the amount found due upon the personal obligation to secure which the mortgage is executed.104 Parties are at liberty to adopt the course pursued under the old chancery system, and take a decree adjudging the amount due upon the personal obligation of the mortgagor, and directing a sale of the premises, and the application of the proceeds to its payment, and after sale apply for the ascertainment of any deficiency and for execution for the same, or they may take a formal judgment for the amount due in the first instance.1 105 But the lien does not attach until after a sale, and deficiency reported, even though the judgment is docketed when first rendered.106

Where property was

§ 2315. Right of surety by mortgage. mortgaged by a surety to secure the payment of notes of his principal and the mortgage expressly provided that the surety should not be personally liable, and the surety took another mortgage from his principal to indemnify himself, it was held that the holders of the notes might subject the premises mortgaged by the surety to the payment of the notes, or they might abandon the mortgage and subject the property of the principal in the hands of the surety to the payment of the notes, or they might have the property mortgaged to secure the notes sold, the proceeds applied to their satisfaction, and if any balance remained unpaid, subject to the surplus of any property of the principal in the hands of the surety, that might remain after compensating the surety for loss or damage by the appropriation of his property mortgaged: but they are not entitled to appropriate both the property mortgaged by the surety, and that conveyed or mortgaged by the principal to the surety for the indemnity of the latter.107

§ 2316. Separate debts secured by one mortgage. Where separate debts of several persons are secured by one mortgage,

103 Schoole v. Sall, 1 Sch. & Lef. 176; Aylett v. Hill, Dickens, 551; Took's Case, id. 785; Perry v. Barker, 13 Ves. Jr. 198; Dashwood v. Blythway, 1 Eq. Cas. Abr. 317.

104 Rollins v. Forbes, 10 Cal. 299; Rowland v. Leiby, 14 id. 156; Englund v. Lewis, 25 id. 337.

105 Rowland v. Leiby, 14 Cal. 156; Rowe v. Table M. Water Co., 10 id. 441; Hobbs v. Duff, 23 id. 624.

106 Hibberd v. Smith, 50 id. 511; Code C. P., § 726.

107 Van Orden v. Durham, 35 Cal. 136.

either creditor may bring suit to foreclose, but other parties interested must be brought in.108

2317. Severance from realty. The severance and removal of a house from land covered by a mortgage withdraw the house from the mortgage lien; and after the removal the mortgagor or his assignee has a right to sell the house, and the purchaser may convert it to his own use.

109

In California,

§ 2318. Statute of Limitations, California. an action upon any contract, obligation or liability founded upon an instrument in writing executed in that state, is barred in four years; if executed out of the state, in two years.110 Where an action upon a promissory note, secured by a mortgage of the same date upon real property, is barred by the Statute of Limitations, the mortgagee has no remedy upon the mortgage; and although he may pursue distinct remedies upon the note and mortgage, the limitation prescribed is the same in both cases.111 The mortgage is as much within the general designation of a contract, obligation, or liability founded upon an instrument in writing, as is the note iself.112 The statute may be pleaded by one who holds a mortgage upon the same land, executed after the note secured by the first mortgage became barred;113 or by the grantee of the mortgagor.114 In other states a different rule prevails by force of different Statutes of Limitation, though resting upon the same principle, viz., that the note and mortgage are affected by the statute independently of each other, and hence where a longer period is prescribed for a mortgage than for the note secured, the remedy upon the mortgage will continue, notwithstanding the

108 Tylor v. Yreka Water Co., 14 Cal. 212.

109 Buckout v. Swift, 27 Cal. 434; 87 Am. Dec. 90; see, also, Hill v. Gwin, 51 Cal. 47. In the former case the house was removed by a flood; in the latter case fixtures were removed by authority of the mortgagee before foreclosure; and although the mortgagee became the purchaser, it was held that the mortgagor could recover the value of the fixtures so removed.

110 Code C. P., §§ 337, 339; see Bank of Shasta v. Boyd, 99 Cal. 604.

111 Lord v. Morris, 18 Cal. 482.

112 Id.; see, also, Low v. Allen, 26 Cal. 142; Sichel v. Carrillo, 42 id. 493.

113 Id.

114 McCarthy v. White, 21 Cal. 495.

note may be barred; and where the limitation is the same, the bar, though separate, will occur at the same time.115 Thus, in Georgia, a promissory note is barred in six years, and a mortgage in twenty; but the note being barred will not prevent an action to foreclose the mortgage.116

2319. Statute of Limitations

renewal. In Lent v. Morrill, 25 Cal. 492, it was held that a renewal of a note secured by a mortgage upon lands, so as to extend the time within which it would be barred by the Statute of Limitations, carries with it an extension of the lien of the mortgage to the time when the note will expire by the terms of the renewal, if at the time the note is renewed the maker of the note, being also the mortgagor, is still the owner of the lands mortgaged. The correctness of this ruling might be open to question upon principle, upon the theory adopted in the cases cited in the preceding section, namely, that the statute operates upon these obligations separately; that they give distinct remedies to the creditors, which may be separately enforced; that the one is a personal obligation, while the other creates no personal obligation, but a lien on specific property; that a debtor may be willing to renew his personal obligation, and not willing to renew a lien on his property; and that a willingness to do the latter can not be inferred from the former, any more than the making of the note originally, per se, created a mortgage. It is true that the mortgage is an incident to the debt, but it is not a necessary incident, and, though frequent, it is not even a usual one. It is created by a separate act, with certain formalities which are not required in making a promissory note. The Civil Code, however, seems to have settled the question. It provides: "A mortgage can be created, renewed, or extended, only by writing, executed with the formalities required in the case of a grant of real property.117

§ 2320. Statute of Limitations estates. The statute requiring claims against an estate to be presented to the executor or administrator for allowance within a specified time, is practically a Statute of Limitations. A mortgage upon the lands. of decedent is a claim within the meaning of this statute. and

115 See Sichel v. Carrillo, 42 Cal. 493, and cases there cited. 116 Elkins v. Edwards, 8 Ga. 326; see, also, Thayer v. Mann, 19 Pick. 535; Joy v. Adams, 26 Me. 333.

117 § 2922.