county in which the subject of the action, or some part thereof, is situated.48 And in order to give the court jurisdiction to enter a decree of foreclosure, it is necessary for the plaintiff to allege and prove that the land sought to be foreclosed is situated in the county in which suit is brought. In the absence of an allegation of such fact in the complaint, the plaintiff is not entitled to prove it, nor can a finding or recital in the decree that the land is situated in such county be supported in the absence of the necessary averment in the complaint.49 A complaint in foreclosure describing the lands as situated in a county out of which a new county has been formed since the date of the mortgage, but containing no description identifying the lands as being located in the new county in which the action is brought, is insufficient to sustain a finding that the land. is situated therein.50

§ 2294. Equity practice. Under the former procedure, if proceedings had been had, the complaint should show that the remedy at law had been exhausted, and with what effect,51 but proceedings at law were not necessarily a bar to the foreclosure.52 But the practice is different now; if there have been any proceedings, they are to be set up by defense.53 The statute of North Dakota (Comp. Laws, § 5434) requires that a complaint, upon its face, must show whether any proceedings have been had at law, or otherwise, for the recovery of the debt secured by the mortgage, and such complaint must show that no other proceedings than those referred to therein have been had for such purpose. And it was held that an averment that no other foreclosure proceedings had been instituted than proceedings to foreclose by advertisement which had beeen enjoined, was not a compliance with the statute, and that the complaint was, therefore, vulnerable to demurrer.54

48 Goldtree v. McAlister, 86 Cal. 93; and see § 52, ante.

49 Campbell v. West, 86 Cal. 197. Sufficient allegation of the situation of the mortgaged property, see Graham v. Stewart, 68 Cal. 374.

50 Campbell v. West, 86 Cal. 197.

51 Shufelt v. Shufelt, 9 Paige, 137; 37 Am. Dec. 381; Lovett v. German Reformed Church, 12 Barb. 67.

52 Williamson v. Champlin, 8 Paige, 70; Suydam v. Bartle, 9 id. 294.

53 Newton v. Newton, 12 Ind. 527.

64 Fisher V.

Bouisson, 3 N. Dak. 493; see Dimick v. Grand Island Banking Co., 37 Neb. 394.

§ 2295. Enforcement of mortgage against a part only of the lands mortgaged is a waiver of the mortgage lien as to the remainder; but such waiver will not prevent the docketing of a judgment for any unsatisfied balance of the decree.55

§ 2296. Essential averment. The complaint should state that the debt was due at the time the action was commenced.56

§ 2297. Estate of deceased partner. An action to foreclose a mortgage made by a deceased partner on his separate estate, may be maintained without showing in the complaint that the firm is insolvent, or that the mortgagee has pursued his remedy upon the debt against his surviving partner.57 In such case, if the surviving partner be executor of deceased, and also claims an interest in the mortgaged property as devisee, he may be, as an individual, made codefendant with himself as executor.58 An action may be

§ 2298. Executors as parties defendant. maintained against an executor or administrator to foreclose a mortgage upon real estate, executed by his testator or intestate, although the debt secured by the inortgage has been presented and allowed,59 without joining the heirs of the mortgagor as defendants.60

§ 2299. Infant defendants.

If there are infant defendants the complaint must state what their interest is, and whether it is paramount or subordinate to the interest mortgaged.61

55 Cal. Code C. P., § 726; Mascarel v. Raffour, 51 Cal. 242; Bull v. Coe, 77 id. 54; 11 Am. St. Rep. 235.

56 Hare v. Van Deusen, 32 Barb. 92; Smith v. Holmes, 19 N. Y. 271; McCullough v. Colby, 4 Bosw. 603; Watson v. Thibou, 17 Abb. Pr. 184. Where the complaint shows with reasonable certainty that, at the time the mortgage was given, the debt recited was already due and unpaid, an objection to the complaint that it does not allege nonpayment of the sum demanded is not tenable. Chaffee v. Browne, 109 Cal. 211. Nor is it necessary to allege in the complaint notice to the mortgagor that the plaintiff has elected to consider the whole sum due for default in payment of installments of interest. Broadbent v. Brumback, 2 Idaho, 336; also, Whitcher V. Webb. 44 Cal. 130; Dean v. Applegarth, 65 id. 391; Life Ins. Co. v. Shepardson, 77 id. 345; Bank of Napa v. Godfrey, id. 612. 57 Savings & Loan Soc. v. Gibb, 21 Cal. 295.

§ 2300. Injunction. The court may, on good cause shown, restrain the party in possession of the mortgaged premises from committing injury to the same during foreclosure.62 The remedy in such case is only preventive, and not exclusive of any other remedy.63

§ 2301. Interest, averment of. In an action to foreclose a mortgage, an allegation that a party who is made a codefendant with the mortgagor has or claims to have some interest in or claim upon the mortgaged premises, is sufficient, without averring the character of the interest. A general allegation in the complaint that such parties have or claim to have some interest in the property is all that is required.65

§ 2302. Lien of bondholder. The lien of a bondholder who has lent money to a state, on the pledge of certain property by its legislature, can not be divested or postponed by a subsequent act of such legislature.66 Such bondholder is protected by the clause of the Constitution of the United States which forbids a state to pass a law impairing the obligation of contracts.6 67 The bondholder does not lose the lien of his first bonds by surrendering or exchanging others of later date and of inferior security for canal stock and other state pledges.68 A suit could be maintained upon the coupons, without production of the bonds to which they had been attached. A coupon payable to bearer, cut from a bond and owned by one party, while another party owns the bond, is still a lien under a mortgage given to secure the bond, and entitles the holder to share pro rata in the proceeds of said mortgage on foreclosure.70

62 Cal. Code C. P., § 745.

69

63 Sands v. Pfeiffer, 10 Cal. 258; see More v. Calkins, 85 id. 177. 64 Anthony v. Nye, 30 Cal. 401; Sichler v. Look, 93 id. 600; San Francisco Breweries v. Schurtz, 104 id. 420; Horton v. Long, 2 Wash. St. 435; 26 Am. St. Rep. 86; Carpenter v. Ingalls, 3 S. Dak. 49; 44 Am. St. Rep. 753.

65 Poett v. Stearns, 28 Cal. 226; see Bradbury v. Davenport, 114 id. 593.

66 Trustees of Wabash & Erie Canal Co. v. Beers, 2 Black, 448. 67 Id.

68 Id.

69 Commissioners of Knox Co. v. Aspinwall, 21 How. (U. S.) 539. 70 Miller v. Rutland & W. R. R. Co., 40 Vt. 399; 94 Am. Dec. 413; Arents v. Commonwealth, 18 Gratt. 750.

§ 2303. Material rights. The action for a foreclosure of a mortgage upon real property is not brought for the possession. merely of the property, except as such possession may follow the sheriff's deed, but to subject to sale the title which the mortgagor had at the time of executing the mortgage, and to cut off the rights of parties subsequently becoming interested in the premises, and executors and administrators do not possess the title, but only a temporary right to the possession.71

§ 2304. Mortgage is a contract by which specific property is hypothecated for the performance of an act, without the necessity of a change of possession.72 It may be created upon property held adversely to the mortgagor.73 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.74 It is a lien upon everything which would pass by a grant of the property.75 It is not a personal obligation;76 and the assignment of a debt secured by a mortgage, carries with it the security."

§ 2305. Mortgage a mere security. A mortgage is a mere security for the payment of money or the performance of some other act, the interest passing to the mortgagee being regarded as a lien upon the real estate. It passes no interest or estate in the land except the lien, and the lien is an incident to the debt or the obligation which is thereby secured.78 The definition of a mortgage, as known at common law, an estate defeasible by the performance of a condition subsequent, does not correctly describe that instrument as it is interpreted in California and most of the other states.7 79 This doctrine is sustained by a decided preponderance of authority:80 and is established in this state by statute.81 That a deed absolute on

71 Burton v. Lies, 21 Cal. 87.

72 Cal. Civil Code, § 2920.

73 Id., § 2921.

74 Id., § 2922.

75 Id., § 2926.

76 Id., 2928.

77 Id., § 2936; see § 345, ante.

78 McMillan v. Richards, 9 Cal. 409.

79 Jackson v. Lodge, 36 Cal. 28.

80 Coles v. Coles, 15 Johns. 319; Lane v. Shears, 1 Wend. 433. 81 Cal. Code C. P., § 744; and see Wenzel v. Schultz, 100 Cal. 250; Toby v. Oreg. Pac. R. R. Co., 98 id. 490.

its face may be proved to have been intended only as a mortgage is settled in this state;82 but an absolute deed, although shown by parol evidence to have been intended as a mortgage, conveys the legal title.83

§ 2306. Parties to foreclosure suit. All persons interested in the mortgaged premises should be made parties, otherwise they will be entitled to redeem, even though the sale was made on the oldest lien.84 So, an assignee is entitled to foreclose, but the mortgagee is still a proper party; but if the assignment has been absolute, conveying the entire interest in the mortgage, he is no longer a necessary party.85 Where the mortgagor has by deed conveyed his equity to another, he need not be a party.86 A subsequent purchaser of land mortgaged is a proper, if not a necessary, party to a foreclosure suit; and if the complaint be faulty in praying to hold him as trustee on account of fraud in the purchase, such defect can not be reached by demurrer.87

If the real holders of the

§ 2307. Parties supplemental. title are not parties to the decree of foreclosure, a court of equity will allow them to be made such by a supplemental complaint, provided application be made within a reasonable time.88

82 Vance v. Lincoln, 38 Cal. 586.

83 Hughes v. Davis, 40 Cal. 117.

84 Nash's Pl. & Pr. 346; and see Landon v. Townshend, 112 N. Y. 93; 8 Am. St. Rep. 712; Watts v. Julian, 122 Ind. 124.

85 Newman v. Chapman, 2 Rand. 92; McGuffey v. Finley, 20 Ohio 474. Foreclosure by assignee of mortgage. See Morris v. McKnight, 1 N. Dak. 266.

86 Bigelow v. Bush, 6 Paige Ch. 343.

87 DeLeon v. Higuera, 15 Cal. 495. Where notes and a mortgage to secure them are taken by a trustee in his own name for the benefit of the estate of a decedent, he becomes the trustee of an express trust, and, as such, may sue to foreclose the mortgage, without joining with him the persons for whose benefit the action is prosecuted. White v. Allatt, 87 Cal. 245. In an action to foreclose a mortgage on the homestead, executed by the husband, the wife is a necessary party, and if not made a party is entitled to intervene. Mabury v. Ruiz, 58 Cal. 11. The foreclosure of a prior mortgage lien upon real property, without making a subsequent judgment lien creditor a party, in nowise affects the rights of the latter. De Lashmutt v. Sellwood, 10 Oreg. 319. Joinder of maker and indorser of mortgage note in foreclosure proceedings. See Smith v. McEvoy, 8 Utah, 58.

88 Heyman v. Lowell, 23 Cal. 106.