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mortgage of record, that plaintiff recover his costs herein, and for other and further proper relief."

2341. Action to redeem

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163

tender. A subsequent party in interest, whether by way of mortgage, lease, or judgment, can not on motion obtain a right to redeem and have the property conveyed to him by a purchaser. The only remedy in such a case is by an action seeking to enforce such right to redeem; and in such an action the rights of all other parties can be protected. 164 Although a power of sale mortgage authorizes the mortgagee or his assignee to become the purchaser at the sale, yet if he fails in the utmost diligence in protecting the rights of the mortgagor, the mortgagor will be allowed to redeem.165 The plaintiff, in an action to redeem a mortgage, need not allege or prove a tender of the amount due upon the mortgage debt previous to the commencement of the action.168

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defendant [mortgagor], being the owner in fee of the following described premises, leased the same to. the plaintiff by an

163 For the form of a complaint to ascertain and declare the rights of adverse claimants to real property, to allow redemption from a mortgage, to restrain foreclosure of a mortgage, and for the appointment of new trustees under a trust deed to fill the place of trustees who had renounced, see Woodgate v. Fleet, 9 Abb. Pr. 222.

164 Douglass v. Woodworth, 51 Barb. 79. One can not, against his consent, be deprived of the right of redemption, without due process of law. Sellwood v. Gray, 11 Oreg. 534.

165 Montague v. Dawes, 14 Allen, 369; see Hahn v. Pindell, 3 Bush, 189, 193.

166 Daubenspeck v. Platt, 22 Cal. 330. Redemption will be decreed on no other terms than the payment of the mortgagee's claim in full. Cuddeback v. Detroy, 61 Cal. 80. But the mortgagee can not, as a general rule, require as a condition precedent of redemption from a mortgage by deed absolute, the payment of any other debt not secured by the deed, and not a lien upon the land. Mahoney v. Bostwick, 96 Cal. 53; 31 Am. St. Rep. 175. A junior incumbrancer, in redeeming from a senior mortgage, must pay the full amount of the mortgage debt, although he seeks to redeem but a part of the mortgaged premises. Spurgin v. Adamson, 62 Iowa,

indenture dated on that day, a copy of which is annexed as a part of this complaint; and that by virtue of said lease the plaintiff entered upon, and ever since has been, and still is in possession of said premises, and is vested with the unexpired term thereof; which premises are described as follows [description].

day of

18..,

II. That on the said [mortgagor] made to the defendant [mortgagee] a mortgage upon the same premises to secure

on the ..

........

day of .....

.., 18..

dollars, payable

III. That on the said last-named day the mortgage became due, but has not been paid; and that said [mortgagee] has commenced an action to foreclose the same for such default. IV. That on the

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day of

18.., the dollars to said [mortgagee],

being the amount due on said mortgage, with interest, and the costs of said action [or proceeding] up to that time, in redemption of said mortgage, and has ever since been ready and willing to pay the same; and did then request him to assign the same to the plaintiff, but he refused so to do.

Wherefore the plaintiff demands judgment that he be allowed to redeem the said mortgage upon paying to the defendant [mortgagee] the amount due upon the mortgage; and that, upon such payment, the defendant by an assignment duly executed and acknowledged by him, assign said bond and mortgage to the plaintiff.167

§ 2343. Accounting and redemption. In a bill for an accounting and redemption, a distinct offer to pay the amount due is not necessary. The form is, that, on the payment of what, if anything, shall be found due, the mortgagee may be decreed to deliver possession, etc.168

2344. Mechanics' liens common form

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contractor against

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tiff and defendant entered into an agreement in writing,

167 The above form is from Abbott's Forms, No. 686.

188 Quin v. Brittain, 1 Hoffm. Ch. (N. Y.) 353; and see Barton v. May, 3 Sandf. Ch. 450; Posten v. Miller, 60 Wis. 494.

whereby the plaintiff agreed to furnish the material and erect for the defendant a certain building upon the lands hereinafter described, and that the defendant agreed to pay him therefor the sum of dollars upon the completion thereof, a copy of which said agreement is hereto attached and made part of this complaint. And the plaintiff avers that he completed said building, under said contract, on the ........ day of ... 18.., and that he has fully kept and performed the said agreement in all things to be by him kept and performed, but the said defendant has not paid the said sum of dollars, mentioned in said agreement, nor any

part thereof.

II. That the lands upon which said building was so erected under said contract, are described as follows, to-wit [insert such description as would be proper in a mortgage]. And he avers that the whole thereof is required for the convenient use and occupation of said building.

III. That at the date of said contract, the defendant was the owner, and reputed owner, of the lands hereinbefore described; and ever since has been, and now is the owner and reputed owner of said land and the said building so erected thereon.

IV. That the plaintiff began to furnish material for said building and to perform labor thereon, under said contract, on the ..... day of.... 18.., and that all the said

materials were furnished and the said building erected between that day and the ........ day of .... which last-named day said building was completed.

18.., on

18... the

V. That on the ........ day of ... plaintiff for the purpose of securing and perfecting a lien for the moneys so due him as aforesaid, under said contract, upon the building and lands hereinbefore described, under the provisions of chapter II, of title IV, of the Code of Civil Procedure of the state of California, filed for record in the office of the recorder of the said county of

his claim

thereof, duly verified by him, a copy of which is hereto attached, marked, exhibit "B," and made part of this complaint; and which said claim was thereafter, on the same day, duly recorded in said office, in a book kept therein for that purpose, to-wit, in book of liens, at page ..

VI. That plaintiff paid for verifying and recording said lien the sum of ... ... dollars.

VII. That

and

dollars is a reasonable attorney's

fee to be allowed to the plaintiff in this action. Wherefore the plaintiff prays judgment against the defendant for the sum of ... dollars, remaining unpaid for said labor and materials, and for costs of suit, including dollars paid for verifying and recording said lien dollars as attorney's fees herein; that said sum of ... dollars, and the costs herein be adjudged a lien upon the lands and premises hereinbefore described; that said land and premises may be sold under the order and decree of this court, and the proceeds thereof be applied to the payment of the costs of this suit and the sum so found due to the plaintiff, and that he have execution for any deficiency, and for other and further proper relief.

[VERIFICATION.]

Attorney for Plaintiff,169

§ 2345. Alteration in building. Changing the form or structure of a building, or its alteration to adapt it to other than its original uses, brings it within the statute.170

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§ 2346. Credits and offsets. The words "payments and offsets are substantially equivalent to the words "credits and offsets."171

§ 2347. Complaint by subcontractor. In New York, where the proceeding is by a subcontractor, his complaint must aver that the labor or materials were furnished in conformity with the contract between the owner and the original contractor.172

169 The above form is drawn under the California statutes. The provisions of the California Code of Civil Procedure are applicable to, and constitute the rules of practice in these actions, except as otherwise provided, in the chapter relating to mechanics' liens: See § 1198. New trials and appeals are also governed by the Code of Civil Procedure, with the same exception. Id., § 1199. The general features of the present law were held constitutional in Hicks v. Murray, 43 Cal. 521, and Quale v. Moon, 48 id. 478. 170 Donahue v. Cromartie, 21 Cal. 86.

171 Preston v. Sonora Lodge, 39 Cal. 119.

172 Broderick v. Poillon, 2 E. D. Smith, 554; Quinn v. Maycr, etc., of New York, id. 558; see, also, Cunningham v. Jones, 4 Abb. Pr. 433; Doughty v. Devlin, 1 E. D. Smith, 625; Kennedy v. Paine, id. 651; Cronk v. Whittaker, id. 647; Hauptman v. Halsey, id. 668; and compare Ricker v. Shadt, 5 Tex. Civ. App. 460; Teahen v. Nelson, 6 Utah, 363; Ditto v. Jackson, 3 Col. App. 281.

The complaint must show that the claimant has taken the requisite steps to create a lien.173

The reasonable construc

§ 2348. Construction of averment. tion of an allegation in a complaint, that "plaintiff furnished the material between the 6th day of April, 1862, and the 28th day of June, 1862," is, that the plaintiff commenced furnishing the materials on the 6th day of April, and continued furnishing the same from time to time up to June 28th.174

§ 2349. Description of premises. A complaint is sufficient if it describes the premises sufficiently to enable the sheriff to determine beyond a doubt the premises to be sold; and the street number of the premises should be shown, or the plaintiff's ignorance of it averred.175 The employees of the contractor have no lien on the building as principals.176 The following notice of a mechanic's lien does not contain such a description of the premises as the statute contemplates: "A dwelling-house lately erected by me for J. W. Connor, situated on Bryant street, between Second and Third streets, in the city of San Francisco, on lot No. ...." The fact that Connor owned no other building on that street would not cure the defect.177

173 Foster v. Poillon, 2 E. D. Smith, 556; Conkright v. Thompson, 1 id. 661.

174 McCrea v. Craig, 23 Cal. 522. The omission to allege in the complaint the time when the building was commenced is cured by the allegation that the lien of the defendants accrued subsequently to the lien of the plaintiff. This allegation, if denied, presents an issue under which all evidence as to the time when the building was commenced, would be admissible. Rust-Owen Lumber Co. v. Fitch, 3 S. Dak. 213. Allegation of date of completion of building. See Cohn v. Wright, 89 Cal. 86.

175 For description of premises in real action, see Cal. Code C. P., § 456; Duffy v. McManus, 3 E. D. Smith, 657; S. C., 4 Abb. Pr. 432; § 2293, ante.

178 Dore v. Sellers, 27 Cal. 588.

177 Montrose v. Conner, 8 Cal. 344; but see Springer v. Keyser, 6 Whart. 187; Harker v. Conrad, 12 Serg. & R. 301; 14 Am. Dec. 691; Tibbetts v. Moore, 23 Cal. 212. Insufficient description. See Hendy v. Pacific Cable Co., 24 Oreg. 152. Sufficient description. See Willamette S. M. Co. v. Kremer, 94 Cal. 205; Whiteside v. Lebcher, 7 Mont. 493; Lignoski v. Crooker (Tex. Civ. App.), 22 S. W. Rep. 774.

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