mortgaged applied in satisfaction of the debt; and if the payee sells any of the property, he has a right to have the proceeds or value applied towards the satisfaction of the debt.250

§ 2380. For future advances. A mortgage given in good faith for the purpose of securing future advances expected to be made, is a good and valid security. Such mortgage need not express its object on its face, although it would be better if it should. But a mortgage knowingly given for a greater sum than is due, and not in good faith, as a pretended security for future advances, is fraudulent in law as to the creditors of the mortgagor.254

2380a. Procedure.

Where, in a mortgage of chattels, there is a mode of foreclosure provided, either party may insist that the foreclosure shall be in the manner provided, but such party must comply with the mortgage stipulation on his part.252 In Oregon, a chattel mortgage may be foreclosed by suit in any county where service may be had on the defendant, notwithstanding the statute providing for a foreclosure by an action at law in the county where the mortgage has been filed.253 A complaint or petition containing a prayer for judgment on a note, the sale of the property mortgaged to secure it, and the application of the proceeds to the payment of the mortgage debt, although the word "foreclosure" is not used, is equivalent to a suit for foreclosure; and where the stating part of such complaint or petition states sufficient to authorize a foreclosure, and is supported by the evidence, foreclosure will be ordered.254 A mortgage upon the furniture of a lodginghouse is valid as between the parties to it, regardless of whether

250 McGarvey v. Hall, 23 Cal. 140.

251 Tully v. Harloe, 35 Cal. 302; 95 Am. Dec. 102. Mortgage to secure the purchase money of the articles mortgaged. See Blaisdell v. McDowell, 91 Cal. 285; 25 Am. St. Rep. 178.

252 Jacobs v. McCalley, 8 Oreg. 124. Foreclosure of chattel mortgage under the laws of Utah. See Armstrong v. Broom, 5 Utah, 176; affirmed, 137 U. S. 266. Foreclosure in equity. See Bennett v. Reef, 16 Col. 431; Clark v. Baker, 6 Mont. 153.

253 Bank of Ogden v. Davidson, 18 Oreg. 57. Under laws of Montana, an action to foreclose a chattel mortgage and an action to recover possession of the mortgaged property may be united. Clark v. Baker, 6 Mont. 153.

254 Graham v. Blinn, 3 Wyom. 746.

or not it is given for the purpose of securing the purchase price of the property therein described, and a demurrer to a complaint, in an action to foreclose the mortgage, on the ground that the complaint is ambiguous in that it fails to show that the mortgage was given to secure the payment of the purchase price of the property is properly overruled.255 An action will lie to foreclose a chattel mortgage, although it may contain a power of sale, and although the mortgagee may recover possession of the property by action.256 Nor is it necessary to make a demand for satisfaction before proceeding to foreclose.257 A complaint in an action to redeem from a chattel mortgage which alleges that after the maturity of the debt the assignee of the mortgagee took possession of the property and has ever since held possession, treating it as his own and selling portions thereof, but which does not allege any facts showing that in taking possession the defendant in any manner violated the terms of the mortgage or otherwise wrongfully converted the property, fails to show grounds for equitable relief.208

§ 2381. Pledge, foreclosure of. A pledge of personal property may be foreclosed by a decree of a court of equity, in the same manner, and with like effect, as if it were a mortgage.2

§ 2382. On street assessment — under California statute.

259

adopted a resolution, whereby said board re

solved that it was their intention to order the following de

scribed work in said county to be done, to-wit [that

street, from the easterly line of ...

255 Barker v. Maskell, 101 Cal. 9.

street, to a point

250 Forepaugh v. Pryor, 30 Minn. 35; Bennett v. Reef, 16 Col. 431. 257 Budweiser Brewing Co. v. Capparelli, 38 N. Y. Supp. 972. 258 Crowe v. La Mott, 14 Mont. 355.

259 Donohoe v. Gamble, 38 Cal. 350; Cal. Civil Code, §§ 2967, 3011; and see Sharpe v. National Bank, 87 Ala. 649. Sale of pledged property. See Guinzburg v. Downs Co., 165 Mass. 467; Williams v. Ashe, 111 Cal. 180.

curbed].

feet westerly therefrom, be macadamized and

........

day of .....

II. That afterwards, and on the 18.., a resolution ordering said work to be done was adopted and passed by said board of supervisors.

....

....

III. That the plaintiff was the contractor therefor, and did all said work under the direction and to the satisfaction of [state the appropriate officer], and the said work was duly approved and accepted by him, who thereupon, on the day of 18.., made an assessment of the total amount of expense of said work necessary to be assessed to recover the sum due for said work and the incidental expenses thereof upon the lots and lands liable to assessment therefor, to-wit [describe such property], and each lot and part thereof was thereby separately assessed in proportion to its frontage on said streets, at the rates hereinafter stated per front foot; that a copy of said assessment, and warrant issued in said case, and hereinafter referred to, is attached to this complaint and made a part thereof.

IV. That by said assessment and diagram the lot of land hereinafter described was assessed as the property of the defendant; that the said defendant, during all the times herein mentioned, was, and now is, the owner of certain portions of the lots and lands aforesaid assessed, and liable to assessment for said work; that said lands are described as follows [give description of land].

V. That by and according to said assessment, said lot of land was assessed to pay the sum of dollars, rated at

dollars per foot fronting on said

street, for said work done thereon, in front thereof, and the ... dollars for its proportion of the

further sum of ....

expense of said work done on the crossing of

street and ...

VI. That on the

street.
.... day of

18.., the said [superintendent of streets, or other proper officer] duly issued and delivered a certain warrant, with said assessment and diagram, to the plaintiff; that a copy of said warrant is hereunto attached and made a part of this complaint; that said warrant, diagram, and assessment were, on said last-mentioned day, all duly recorded by said superintendent in his office, in a book kept by him for such purpose, to-wit, in

VII. That afterwards, and within ten days after the day of.... 18.., with and by virtue of said warrant, assessment, and diagram, said plaintiff demanded payment of said sums so assessed on said premises from the defendant; that he refused and still does refuse to pay the same, and has not paid any part thereof.

VIII. That thereafter, within ten days from the date of said warrant, to-wit, on the ........ day of .... 18.., the same was duly returned to the said superintendent with a return thereon, signed by said plaintiff and verified by his oath, stating the nature and character of the demand as set forth aforesaid, and whether any of the said assessments remained unpaid in whole or in part, and the amount of said assessments so unpaid were fully stated, as also the fact that said sum of money so assessed on the lot of land above described had been demanded as stated aforesaid, and still remained unpaid.

IX. That thereupon, to-wit, on the ...... day of

18., the said superintendent duly recorded the said return, so made upon said warrant, in the margin of the record of said warrant and assessment, and also the original contract referred to therein, at full length in a book kept by him for that purpose in his office, and signed the said record.

X. That more than fifteen days have elapsed since the day of the date of said warrant, and no person has appealed to said board of supervisors concerning the acts, proceedings, or determination of said superintendent in relation to said work, contract, diagram, warrant, or assessment, or either of them.

XI. That all the acts of said superintendent herein mentioned and referred to, were done by him in his official character of superintendent of public streets and highways of said county. And that said sum of ... dollars, being the sum assessed by him on said lot of land herein before described, has not been paid, nor any part thereof, but still remains due and unpaid, although the same has been demanded as stated aforesaid, with the interest thereon at the rate of one per cent per month, from the ....... day of ...

18..

...

Where

dollars,

fore the plaintiff demands judgment for with interest at the rate of one per cent per month from the

day of ...

18.., and that said sum be

adjudged a lien against the lot of land described aforesaid, and that said lot of land be adjudged and decreed to be liable for

the payment of the same, and that the same be sold, and the proceeds of the sale thereof be applied to the payment of the amount found due by the plaintiff.

§ 2382a. Averments. The complaint need not allege that the width of the sidewalk to be constructed has been established by the board of supervisors before the institution of the proceedings for doing the work.260 An allegation that the city council, deeming it necessary, "duly gave and made its determination to order the work done," is a statement in legal effect that everything necessary to be done to give the order validity had been done, and the complaint need not set forth the steps required by the statute to give the city council jurisdiction to order the work done.261 But the complaint is insufficient if it fails to show that the contract for the work done fixed the time for the commencement and completion of the work to be done thereunder, in accordance with the requirements of the California statute, act of March 18, 1885 (Stats. 1885, p. 147), as amended by act of March 14, 1889 (stats. 1889, p. 157).282 So, a complaint to foreclose a street assessment lien, which shows that bids were to be received until 4 p. m. of a certain date, and that the bids were opened, examined, and declared by the board on the day preceding, and that, in pursuance thereof, the board awarded the contract to the plaintiff, shows on its face that the proceedings of the board in awarding the contract were void, and a general demurrer to such complaint is well taken.288

§ 2382b. Foreclosure of street assessment - collateral attack. A decree foreclosing the lien of a street assessment which is valid on its face, and rendered in an action in which the court had jurisdiction of the subject-matter and the person of the defendant, can not be collaterally attacked by a person claiming under him, by showing that prior to the decree the assessment in question had been paid.264

260 Doane v. Houghton, 75 Cal. 360.

261 Pacific Paving Co. v. Bolton, 97 Cal. 88; see Oakland Bank v. Sullivan, 107 id. 428.

262 Washburn v. Lyons, 97 Cal. 314; Libbey v. Elsworth, id. 316. 263 Perine, etc., Paving Co. v. Quackenbush, 104 Cal. 684. 284 Ward v. Dougherty, 75 Cal. 240; 7 Am. St. Rep. 151.