2889.

become the owner of the mortgaged premises, except
by purchase upon a sale under judicial decree, consum-
mated by conveyance. Proceedings in the nature of a
suit to foreclose an equity of redemption held by a
subsequent incumbrancer, may, undoubtedly, be main-
tained by a purchaser under the decree, where such
incumbrancer was not made a party to the original suit
to enforce the mortgage. Such incumbrancer may be
called upon to assert his right by virtue of his lien, and
his equity of redemption, extending to the period pro-
vided by the Statute of Limitations, be thus reduced
to the statutory period of six months. But the owner
of the mortgaged premises, where no power of sale is
embraced in the mortgage, cannot, under any circum-
stances, be cut off from his estate, except by sale in
pursuance of the decree of the Court.-See Prac. Act,
Sec. 260; Whitney vs. Higgins, 10 Cal., p. 547; Mont-
gomery vs. Tutt, 11 id., p. 307; see, also, Carpentier vs.
Brenham, 40 Cal., p. 221; Kortwright vs. Cady, 21 N.
Y., p. 343; Stoddard vs. Hart, 23 N. Y., p. 560; Power
vs. Lester, 23 N. Y., p. 531; Packer vs. Roch. and Syr.
R. R. Co., 17 N. Y., p. 295; Runyan vs. Mersereau, 11
Johns., p. 534; California Code of Civil Procedure,
Sec. 744; see, also, Secs. 2924 and 2925 of this Code.
It will be seen that Sec. 2888 does not change the rule
in this State applicable to mortgage of real property,
but it does change the rule hitherto in force as to mort-
gages of personal property. In Hackett vs. Manlove,
14 Cal., p. 85, it was held that a mortgage of personal
property vested the legal title in the mortgagee, subject
to be divested on compliance with the conditions of the
mortgage.-Moore vs. Murdock, 26 Cal., p. 526. So
in New York a mortgage of personal property in its
ordinary form of a grant upon condition, transfers the
title to the mortgagee.-Bank of Rochester vs. Jones,
4 N. Y., p. 507; Butler vs. Miller, 1 N. Y., p. 496;
Hitchcock vs. Northwestern Ins. Co., 26 id., p. 68;
Southworth vs. Isham, 3 Sandf., p. 448; Shuart vs.
Taylor, 7 How. Pr., p. 251; Fox vs. Burns, 12 Barb.,
p. 677. It appeared desirable to establish a uniform
rule upon this subject, and to make all mortgages mere
liens upon property. The propriety of the rule in
respect to other liens will hardly be questioned.

contracts

All contracts for the forfeiture of property Certain subject to a lien, in satisfaction of the obligation void. secured thereby, and all contracts in restraint of the right of redemption from a lien, are void.

Creation of lien does

2890.

2078; Lucketts vs. Town

NOTE.-This is a well settled rule in relation to a 'mortgage.-See Clark vs. Henry, 2 Cow., p. 324; Holdridge vs. Gillespie, 2 Johns. Ch., p. 30; Remsen vs. Hay, 2 Edw., p. 535; Palmer vs. Gurnsey, 7 Wend., p. 248. The general maxim of jurisprudence, applicable to such cases, 66 is once a mortgage always a mortgage."-Lee vs. Evans, 8 Cal., p. 424; 2 Cowen, p. 324; 1 Yeates, p. 584. Compare Bell vs. Mayor, etc., of New York, 10 Paige, pp. 49, 56; Burns vs. Nevins, 27 Barb., pp. 493, 503. The rule also applies to a pledge.-Code Napoleon, send, 3 Texas, p. 119. Stoher vs. Cogswell, 25 How. Pr., p. 267, is a strong case upon this rule. This beneficent principle doubtless governs in all cases of liens, and the Commissioners have felt no hesitation in giving it in this place as a universal rule. They have omitted the qualifying words of some of the decisions, which imply that an agreement in restraint of redemption may be made subsequently to the execution of a mortgage, inasmuch as such a qualification, if it is a correct statement of the law (which is at least extremely doubtful), is certainly not desirable. Of course a mortgagor may sell his property to the mortgagee, but the transaction must be a genuine sale, and not a forfeiture. This section, however, is not intended to deny the right of an owner of a thing found to exonerate himself from all the claims of a finder by surrendering to the finder the property found.-See Sec. 1871, ante.

The creation of a lien does not of itself not imply imply that any person is bound to perform the act for obligation. which the lien is a security.

personal

Extent of lien.

NOTE.-Culver v. Sisson, 3 N. Y., p. 264; Salisbury vs. Philips, 10 Johns., p. 57; Hone vs. Fisher, 2 Barb. Ch., p. 569; Scott vs. Field, 7 Watts, p. 360; Smith vs. Stewart, 6 Blackf., p. 162; Drummond vs. Richards, 2 Munf., p. 337; Suffield vs. Baskervil, 2 Mod., p. 36; Briscoe vs. King, Cro. Jac., p. 281. But an acknowledgment of indebtedness, in any instrument except a mortgage of real property, is sufficient foundation for an action.-See Elder vs. Rouse, 15 Wend., p. 218; Culver vs. Sisson, 3 N. Y., p. 264.

2891. The existence of a lien upon property does not of itself entitle the person in whose favor it exists to a lien upon the same property for the performance

of any other obligation than that which the lien originally secured.

NOTE. This is the American rule, in regard both to a mortgage and a pledge (Jarvis vs. Rogers, 15 Mass., p. 389), and while the rule is said to be otherwise in England, in respect to liens upon personal property (Story Eq. Jur., Sec. 1034), though not as to mortgages of real property (id.), yet the principle of the text is the one which seems most accordant with justice. The civil law, however, applied the opposite rule to mortgages and pledges of every kind.-Code Napoleon, ? 2082. See, however, Sec. 2876, ante.

Holder of entitled to

lien not

compensa

2892. One who holds property by virtue of a lien thereon, is not entitled to compensation from the owner thereof for any trouble or expense which he incurs tion. respecting it, except to the same extent as a borrower, under Sections 1892 and 1893.

NOTE.-Somes vs. British Empire Shipping Co., 8 H. of L. Cas., p. 338; El, Bl. & E., p. 353; Hidden vs. Jourdan, 28 Cal., p. 301; 32 Cal., p. 397. A mortgagee in possession is not entitled to make any charge by way of compensation for his trouble in managing the property or in collecting the rents-he takes the charge upon himself voluntarily, and has no right to compensation.-Benham vs. Rowe, 2 Cal., p. 387.

ARTICLE IV.

PRIORITY OF LIENS.

SECTION 2897. Priority of liens.

2898. Priority of mortgage for price.

2899. Order of resort to different funds.

liens.

2897. Other things being equal, different liens Priority of upon the same property have priority according to the time of their creation, except in cases of bottomry and respondentia.

NOTE.-Barry vs. Mutual Ins. Co., 2 Johns. Ch.,

p. 608.

2898. A mortgage given for the price of real property, at the time of its conveyance, has priority

Priority of over all other liens created against the purchaser, subject to the operation of the recording laws.

mortgage for price.

Order of

resort to different funds.

NOTE.-In Grey vs. Carnere, 5 Cal., p. 511, the facts were that A, who was in possession of land under a verbal agreement of sale from B, employed C to erect a building upon it. Before the building was completed B conveyed the land to A, who executed to B a mortgage thereon to secure the purchase money. It was held that the conveyance and mortgage were but one act, and that no prior lien on the general property of A could have priority of the mortgage to B,

2899. Where one has a lien upon several things, and other persons have subordinate liens upon, or interests in, some but not all of the same things, the person having the prior lien, if he can do so without risk of loss to himself, or of injustice to other persons, must resort to the property in the following order, on the demand of any party interested :

1. To the things upon which he has an exclusive lien;

2. To the things which are subject to the fewest subordinate liens;

3. In like manner inversely to the number of subordinate liens upon the same thing; and,

4. When several things are within one of the foregoing classes, and subject to the same number of liens, resort must be had

(1.) To the things which have not been transferred since the prior lien was created;

(2.) To the things which have been so transferred without a valuable consideration; and,

(3.) To the things which have been so transferred for a valuable consideration in the inverse order of the transfer.

NOTE.-Where a creditor is entitled to resort to each (Farmers' Loan and Trust Co. vs. Walworth, 1 N. Y., p. 433) of several funds for the satisfaction of his claim, and another person has an interest in, or is entitled as a creditor to resort to, some but not all of them, the latter may require the former to seek satisfaction from

those funds to which the latter has no such claim (In-
galls vs. Morgan, 10 N. Y., p. 178; Besley vs. Law-
rence, 11 Paige, p. 581; Hawley vs. Mancius, 7 Johns.
Ch., p. 174; Welch vs. James, 22 How. Pr., p. 474),
so far as it can be done without impairing the right of
the former to complete satisfaction (Evertson vs. Booth,
19 Johns., p. 486; York and Jersey Steamboat Co. vs.
Jersey Co., Hopk., p. 460; Herriman vs. Skillman, 33
Barb., p. 378), and without doing injustice to third
persons (Reynolds vs. Tooker, 18 Wend., p. 591; Dorr
vs. Shaw, 4 Johns. Ch., p. 17; Ex Parte Kendall, 17
Ves., p. 20). See Sec. 3433, post, and note.

ARTICLE V.

REDEMPTION FROM LIEN.

SECTION 2903. Right to redeem.

2904. Rights of inferior lienor.

2905. Redemption from lien, how made.

redeem.

2903. Every person, having an interest in prop- Right to erty subject to a lien, has a right to redeem it from the lien, at any time after the claim is due, and before his right of redemption is foreclosed.

NOTE. Not only the owner of the fee, but an interest in the property.-Wheeler vs. Morris, 2 Bosw., p. 524; see Kinnoul vs. Monoy, 3 Swanst., p. 202, note; Downe vs. Morris, 3 Hare, p. 394. May redeem at any time after the claim is due.-Kortright vs. Cady, 21 N. Y., p. 343. And before right is foreclosed.-Brown vs. Frost, 10 Paige, p. 243; North River Ins. Co. vs. Snedeker, 10. How. Pr., p. 310; see Code of Civil Procedure, Secs. 701, 702, 703, 704, 705, 706, 707, 346, and 347.

2904. One who has a lien inferior to another, upon Rights of

the same property, has a right:

1. To redeem the property in the same manner as its owner might, from the superior lien; and,

2. To be subrogated to all the benefits of the superior lien, when necessary for the protection of his interests, upon satisfying the claim secured thereby.

34-vol. ii.

inferior lienor.