cases the decree should reserve the right of the adverse claimants, and so limit the relief awarded as to protect those rights.

§ 2281. Action - when it will lie. A mortgagee is not prevented from foreclosing his mortgage in a state court by the fact that the mortgagor has been declared a bankrupt in the United States District Court, and the mortgagee has proved his debt therein; but he must obtain leave from the United States District Court to bring his action in the state court.10 A state District Court has jurisdiction to foreclose a mortgage on real estate which lies outside of the judicial district.11

§ 2282. Account, taking of. The best method is to appoint the proper officer of the court to report the amount due, and then exceptions may be filed; though the calculations may be made by the court; though in that case, a mistake in calculation must be brought to his notice in some form analogous to an exception to a master's report.12

§ 2283. Apportioning debt. If several persons become, subsequently to the mortgage, entitled to separate portions of the whole tract mortgaged, the debt will not be apportioned on their several parts.13 In such case the part of the property still owned by the mortgagor will be first sold; and if that is insufficient to satisfy the decree, the other parts will be subjected in the inverse order in which they were sold by the mortgagor to the several owners.14

§ 2284. Assignment of the land. An assignment by the mortgagee of all his interest in the land, passes nothing unless the debt be assigned, the mortgage being a mere incident to the debt.15 A mortgage of real property shall not be deemed

9 San Fancisco v. Lawton, 21 Cal. 589; Elias v. Verdugo, 27 id. 418; see, also, Ord v. McKee, 5 id. 515.

10 Société d'Epargnes v. McHenry, 49 Cal. 351.

As to when it

11 Société d'Epargnes v. McHenry, 49 Cal. 351. will lie against the estate of a deceased person, see Code C. P., § 1500.

12 Guy v. Franklin, 5 Cal. 417; see Code C. P., § 638, and following. 13 Perre v. Castro, 14 Cal. 531.

14 See Cheever v. Fair, 5 Cal. 337; 1 Story's Eq. Jur. 223.

15 Nagle v. Macy, 9 Cal. 428; Mack v. Wetzler, 39 id. 247; Storch v. McCain, 85 id. 304; Adler v. Sargent, 109 id. 42; Jackson v. Bronson, 19 Johns. 325; Ellison v. Daniels, 11 N. H. 274.

a conveyance, whatever its terms, so as to enable the mortgagee to recover possession without foreclosure and sale.16

§ 2285. Stipulation for attorneys' fees. In California, in all cases of foreclosure of mortgage, the attorney's fee shall be fixed by the court in which the proceedings of foreclosure are had, any stipulation in said mortgage to the contrary notwithstanding.17 If there is no provision in the mortgage for payment of counsel fees, the plaintiff in an action to foreclose is not entitled to such fees.18 A plaintiff who appears in person is not entitled to counsel fees, though stipulated for in the mortgage.19 In the foreclosure of a mortgage against the property of a deceased person, no counsel fees are allowed, unless the claim secured by the mortgage has been first presented to the executor or administrator.20

§ 2286. Bond for title. At common law, a bond for title is in effect a mortgage. The legal title remains in the vendor, and an equity rests in the vendee, to have the title in compliance with the conditions; and the legal title and equity go to the whole estate, including fixtures. The vendor can bring an action in ejectment on breach of condition, or foreclosure.21

§ 2287. Conditions in mortgage. The usual conditions in a mortgage contain no personal obligation to pay the money. The contract is simply that the mortgagor may pay the sum named, which will revest the title in him, or if he fail to do it, then the deed becomes absolute at law, though in equity he still has a right to redeem, which right may be cut off by a foreclosure. In such cases the mortgagee is limited to the land for payment, and if that is not sufficient he has no further security.22

16 Cal. Code C. P., § 744; Civil Code, § 2927; and see Smith v. Smith, 80 Cal. 323; Railroad Co. v. Beshoar, 8 Col. 32; Watson v. Investment Co., 12 Oreg. 474; Fee v. Swingly, 6 Mont. 596.

17 Act of March 27, 1874, following § 728 of Code C. P.

18 Sichel v. Carillo, 42 Cal. 494.

19 Patterson v. Donner, 48 Cal. 380.

20 Code C. P., § 1500; see, generally, as to the allowance of counsel fees, Monroe v. Fohl, 72 Cal. 568; Alden v. Royal, 60 id. 215; Hewitt v. Dean, 91 id. 5; Lammon v. Austin, 6 Wash. St. 199; Avery v. Mande, 112 Cal. 565.

21 Merritt v. Judd, 14 Cal. 59.

22 Drummond v. Richards, 2 Munf. 337; 4 Kent's Com. 137; Nash's Ohio Pl. & Pr. 347.

66

$ 2288. Claims against estate.

66

The words "claimant" and "claim" are synonymous with the words creditor" and legal demand."23 The word claims" does not embrace mortgage lien, but has reference only to such debts or demands against decedent as might have been enforced against him in his lifetime by personal actions, for the recovery of money and upon which only a money judgment could have been rendered.24 The word "claim," when it speaks of claims against an estate, is broad enough to include a mortgage,25 or a note secured by a mortgage.26

82289. Conflicting claims. The purchaser in good faith and for value of a mortgage should not have his rights prejudiced or postponed by a controversy between purchasers of the mortgaged premises, concerning the order in which different portions of the premises covered by the mortgage shall be sold under the foreclosure. He is entitled to judgment for foreclosure and sale, without reference to the conflicting claims of owners of the estate.27

If the debt be sold to pay the

§ 2290. Debt falling due by installments. not all due, so soon as sufficient property is debt due the sale shall cease, and the court may order more sold as soon as more of the debt falls due.28

But if the prop

erty can not be sold in portions without injury to the parties, the whole may ordered to be sold in the first instance, and the entire debt and costs paid, with a proper rebatement of interest.29 When a debt secured is payable in installments, the mortgagee or his assignee has a right to bring an action to foreclose the mortgage, when the first installment falls due and is not paid.30 This is also the practice in Ohio.31 A mortgage 23 Gray v. Palmer, 9 Cal. 616.

24 Fallon v. Butler, 21 Cal. 24; 81 Am. Dec. 140.

25 Ellis v. Polhemus, 27 Cal. 350.

26 Id.

27 Smart v. Bement, 3 Keyes, 241.

28 Cal. Code C. P., § 728. Proper practice under the Code is to apply by motion, and not by petition, for a sale of more of the mortgaged premises as often as more becomes due for principal or interest. Bank of Napa v. Godfrey, 77 Cal. 612.

29 Id.

30 Grattan v. Wiggins, 23 Cal. 16; and see Leonard v. Tyler, 60 id. 299; Maddox v. Wyman, 92 id. 674.

31 King v. Longworth, 7 Ohio. 585; Lansing v. Capron, 1 Johns. Ch. 617; Lyman v. Sale, 2 id. 487.

given to secure a debt payable by installments may be foreclosed on failure to pay the first installment when due. The bill in such case may set out the amounts not yet due, and if they become due and are not paid before the final hearing, they may be included in the decree.32

§ 2291. Defeasance. The difference between an absolute deed and a mortgage consists in the defeasance, which is an essential part of the latter. Whatever may be the effect of a parol defeasance in equity, it is clear that it can not at law operate as a defeasance of a deed of conveyance.33 In a bill in equity that avers a deed to have been a mortgage, it is not necessary to add that it became so by a defeasance, in order to let in proof of a defeasance.34 Where A. gave to B. a deed of bargain and sale absolute on its face, and as a part of the same transaction, B. executed and delivered to A. an instrument in writing, in which he stated that the land had been deeded to him as security for the payment of a promissory note, and the instrument recited that moneys received from the sales of the land should be credited on said note, and that when the ncte was fully paid by the proceeds from the sales of the land, or otherwise, that B. should redeed to A. all the lands first deeded to him, excepting such as may be sold, such a transaction is not intended as a mortgage merely. The instrument relied on as a defeasance amounts to a declaration of trust, and shows the intention, to vest the title in B. to enable him to sell and convey the lands.35 To convert a deed, absolute in form, into a mortgage, the evidence ought to be so clear as to leave no doubt that the real intention of the parties was to execute a mortgage; otherwise the intention appearing on the face of the deed will prevail.36 The test is, whether, notwithstanding the conveyance, there is a subsisting continuing debt from the grantor to the grantee.37 If it is given as a security for an indebtedness, a court of equity will declare it to be a mortgage, and allow the grantor to redeem, both as 32 Magruder v. Eggleston, 41 Miss. 284.

33 Flagg v. Mann, 14 Pick. 467: Scituate v. Hanover, 16 id. 222; Flint v. Sheldon, 13 Mass. 443; 7 Am. Dec. 162; Eaton v. Green, 22 Pick. 526; 1 Washb. Real Prop. 480; see Civil Code, § 2925.

34 Bently v. Phelps, 2 Woodb. & M. 426.

35 Vance v. Lincoln, 38 Cal. 586.

36 Henley v. Hotaling, 41 Cal. 22; and see Rogers v. Jones, 92 id. 80; Husheon v. Husheon, 71 id. 407.

87 Farmer v. Grose, 42 Cal. 169.

against the original grantee and parties who purchase from him with knowledge.38

§ 2292. Demand and notice. Against a subsequent purchaser the complaint should allege that the mortgage was recorded, or that defendant had notice when he purchased.39 But no demand is necessary where a mortgage is payable generally.40 The English practice seems to be different. Nor is guarantor or surety entitled to notice before commencing suit.42

§ 2293. Description of land. Section 58 of the California Practice Act,43 relating to the description of land, does not apply to actions for the foreclosure of mortgages.44 In Indiana, the mortgage, etc., must be made part of the complaint.45 But in California it is sufficient that the complaint refer to a copy of the mortgage annexed for a description of the land.46 In an action to foreclose a mortgage as it is written, a mortgagor can not be heard to complain of an indefinite description of the mortgaged property, whatever might be the effect of a sale under the description.47

§ 2293a. Jurisdiction - situs of the mortgaged property. Actions for the foreclosure of mortgages must be tried in the

38 Kuhn v. Rumpp, 46 Cal. 299. A deed absolute on its face accompanied by a contemporaneous defeasance and showing that it was made to secure the payment of a sum of money loaned by the grantees to the grantor, and payable at a future day, with interest, is a mortgage. Booth v. Hoskins, 75 Cal. 271; Kelly v. Leashman, 2 Idaho, 1112; Bunker v. Barron, 79 Me. 62; 1 Am. St. Rep. 282.

39 Peru Bridge Co. v. Hendricks, 18 Ind. 11.

40 Gillett v. Balcom, 6 Barb. 370; Harris v. Mulock, 9 How. Pr. 402. When a debt secured by a mortgage is payable in installments it is not necessary to make a demand for the payment of an installment due before commencing an action of foreclosure, in order to put the mortgagor in default. Maddox v. Wyman, 92 Cal. 674. 41 Whitw. Eq. Prec. 395, note 7.

42 Rushmore v. Miller, 4 Edw. Ch. 84; Civil Code, § 2807.

43 Code Civ. Pro., § 456.

44 Emeric v. Tams, 6 Cal. 155.

45 Hiatt v. Goblt, 18 Ind. 494.

46 Emeric v. Tams, 6 Cal. 155; Whitby v. Rowell, 82 id. 635; Savings Bank v. Burns, 104 id. 473. This is sufficient if the mortgage sufficiently describes the mortgaged premises. Johnston v. McDuffee, 83 Cal. 30.

47 Graham v. Stewart, 68 Cal. 374.