the debt, after assignment and delivery of the mortgage and the notes to the assignee, and the recording of the assignment, is not good against the assignee, who has not consented thereto, although he holds the notes and mortgage merely as security.

18. A mortgagor conveyed part of the premises to D. and part to J. on the same day. Afterwards the mortgagee released J.'s land for less than its market value. On foreclosure, D. contended that J.'s was the prior conveyance of the two, and that, therefore, the mortgagee was bound, as against D., to credit the mortgage debt with the difference between the market value of J.'s land and the amount paid for the release. Held, that the burden was on D. to establish such priority in conveyance.

19. In an action to foreclose a mortgage, the amended petition simply set out certain indorsements of payment on the note, alleging nothing that was not sufficiently stated in the original complaint. Held, that it was in the nature of a bill of particulars, and not an amendment in matter of substance that would bring it within Code Civ. Proc. § 472, requiring service of amended pleadings.

20. For the purpose of bringing an action of foreclosure, possession by plaintiff of the notes and mortgage is sufficient, even though they are held simply for collection.

21. A sheriff's deed made under attachment proceedings relates back to the date of the levy of the writ.

22. In foreclosure proceedings it is error to order the sale of any part of the premises that has passed into other hands by deed of the mortgagor, unless the owner of the fee to such part is made a party or appears.

23. Where a mortgage provides that the mortgagee may include in the foreclosure a reasonable attorney fee, to be fixed by the court, the duty of fixing the amount devolves upon the court, and no testimony as to employment or value of services is necessary, if it appears that the attorney brought and tried the suit.

Commissioners' decision. Department 2. Appeal from superior court, Madera county; W. M. Conley, Judge.

Action by O. J. Woodward against John Brown and others. From a decree for plaintiff, and an order denying a new trial, and an order striking out an affidavit filed in support of the motion for new trial, certain defendants appeal. Modified.

Robt. L. Hargrove, for appellants. Geo. E. Church, for respondent.

CHIPMAN, C. This is an action to foreclose a certain mortgage executed by John Brown, one of the defendants, to Thomas E. Hughes, another defendant, on September 28, 1889, to secure certain three promissory notes of even date with the mortgage, executed by Brown to Hughes, which said notes and mortgage were, on May 1, 1891, before maturity, assigned to plaintiff. The property mortgaged consisted of certain lots and blocks of Hughes' addition to the town of Madera, situated at the time in Fresno county, now Madera county, about 1,000 lots in all, many of which afterwards fell into the ownership of divers persons, who were made defendants as claiming some interest therein. Default was entered as to certain 17 of the defendants, and certain 5 of the defendants, viz. Bank of Madera, Annie

Lazar, John Brown, A. J. Etter, and N. Rosenthal, appeal. The pleadings cover 500 folios, and present an exceedingly complicated array of facts out of which the issues arise. It appears that mortgagor Brown conveyed block 65, March 17, 1891, before the assignment to plaintiff, and mortgagee Hughes released the same to Brown, consideration for sale being $3,000, and for the release $1,000. Brown also conveyed the east one-half of block 59, September 4, 1891, and the west one-half of block 59, October 8, 1891. This block was released by plaintiff September 4, 1891, consideration not shown. Brown also conveyed blocks 51 and 60 to McDonald, trustee, by deed dated January 20, 1892, and McDonald, by deed of same date, conveyed the same lots to one Dorn, consideration mentioned, $10; released by plaintiff February 23, 1892, for consideration of $5,000. All the remaining mortgaged premises were conveyed by Brown to McDonald, trustee, October 8, 1891, by grant deed; consideration stated was $10. McDonald conveyed by grant deed to John Brown Colony, a corporation, January 20, 1892, the lots described in his deed of October 8, 1891; consideration mentioned, $10. The colony corporation commenced selling lots January 21, 1892, and disposed of quite a number up to January 19, 1893, when it conveyed the remaining lots and blocks— still a large number-to the Madera Fruit & Land Company, a corporation. This latter corporation sold several of the lots. when, on June 2, 1893, the remainder were attached at the suit of Bank of Madera, and it received sheriff's deed to the property of date March 12, 1895. Etter's deed is from John Brown Colony, dated February 23, 1892. Lazar's deed is from Madera Fruit & Land Company, dated May 27, 1893. Rosenthal's deed is from same company, and is dated June 3, 1893. Other facts will appear in connection with the various points raised by counsel. As conclusions of law the court found that plaintiff was entitled to the decree of the court for the sale of the premises not released, and in the inverse order of the several conveyances thereof, and for deficiency judgment against Brown. The decree was entered accordingly. The appeal is from the decree, and from the order denying motion for new trial, and from the order made May 9, 1896, striking out the affidavit of Robert L. Hargrove, served and filed in support of said motion for new trial.

1. The first question presented is as to the rights of the mortgagor Brown. It is claimed by him that under section 726, Code Civ. Proc., and the decisions of this court touching that section, the mortgaged premises constitute the primary fund out of which the mortgaged debt must be paid, and that the mortgagee cannot arbitrarily release portions of that fund for less than their actual value, without the consent of

the mortgagor; and, if he does so, he must, on foreclosure, credit the mortgage with the value of the portions released,-citing Bartlett v. Cottle, 63 Cal. 366; Porter v. Muller, 65 Cal. 512, 4 Pac. 531; Bull v. Coe, 77 Cal. 54, 18 Pac. 808; and Barbieri v. Ramelli, 84 Cal. 154, 23 Pac. 1086. Respondent treats this point as of little consequence, and makes but a mere passing allusion to it. Section 726, supra, provides: "There can be but one action for the recovery of any debt or the enforcement of any right secured by mortgage upon real estate or personal property, which action must be in accordance with the provisions of this chapter. In such action the court may by its judg ment direct a sale of the incumbered property, * and the application of the proceeds of the sale to the payment of the costs of the court and the expenses of the sale, and the amount due to the plaintiff; and if it appears from the sheriff's return that the proceeds are insufficient and a balance still remains due, judgment can then be docketed for such balance against the defendant or defendants personally liable for the debt," etc. The question presented is not whether the mortgagee may release a portion of the property, and look only to the residue, or may foreclose upon a part only, and waive his security as to the residue, which he may do; but it is whether he may do this without the consent of the mortgagor, and have a judgment docketed for a deficiency. We cannot perceive upon what principle of equity, or by what construction of this section, it can be held that the mortgagee may, without the consent of the mortgagor, let go part of his security to a purchaser from the mortgagor, at less than its value it may be, and then look to the mortgagor to make up the deficiency. It would be a gross injustice to the mortgagor to hold him liable for a deficiency which the mortgagee has, without the mortgagor's authority or consent, created. The deficiency which the Code directs may take the form of a personal judgment is a deficiency arising from the sale of all the mortgaged security, and not a part of it. Jones, Mortg. § 678a; Bank v. Thayer, 136 Mass. 459; Bank v. Munson, 47 Conn. 390. The danger to the interests and rights of the mortgagor will at once be seen by supposing a not improbable case, and one much like the one before us. The mortgagee, for reasons of his own, releases one after another of the mortgaged lots without consideration therefor, or for a small consideration, thinking that he has retained enough out of which to realize on sale the amount of the debt. It turns out, through depreciation of values or other cause, that he miscalculated the value of his retained security, and there was a deficiency after sale. Now, there would have been no deficiency if he had not released a portion of his security. It would be clearly

inequitable to hold the mortgagor, in such case, for any deficiency.

In Porter v. Muller, 65 Cal. 512, 4 Pac. 531, it was held that the proceeds of the sale of the mortgaged premises constitute the primary fund out of which the mortgaged debt must be paid. In Biddel v. Brizzolara, 64 Cal. 354, 30 Pac. 609, it was said: "Whatever the form of the debt, the mortgagor can be legally compelled to pay no part of it until decree is entered for the sale of the premises mortgaged, and the liability which shall then accrue to him is a liability to pay only a deficiency which shall appear on the sheriff's return. The liability of the mortgagor is therefore contingent on the fact that a sale of the mortgaged premises shall satisfy the debt and costs." In Toby v. Railroad Co., 98 Cal. 490, 33 Pac. 550, the language is, "The mortgagee must exhaust the property." In Brown v. Willis, 67 Cal. 235, 7 Pac. 682, it was held that "a mortgagor cannot be compelled to pay any part of his mortgage debt until a decree is entered for a sale of the premises mortgaged." But, if the mortgagee should release a part, he places himself in a position where he cannot sell all the premises. It is well settled that no deficiency can be entered up where a partial foreclosure takes place. It can only be done upon final sale of all the property. So long as any of the mortgaged premises remains unsold, there can be no deficiency. Bull v. Coe, 77 Cal. 54, 18 Pac. 808. See, also, Hall v. Arnott, 80 Cal. 348, 22 Pac. 200. In Blumberg v. Birch, 99 Cal. 416, 34 Pac. 102, it was held that, after sale of the mortgaged premises, and there remaining a deficiency, action would lie to recover the amount, although the deficiency judgment was void; but this was upon the assumption that the mortgage security had been exhausted by the foreclosure sale. In Barbieri v. Ramelli, 84 Cal. 154, 23 Pac. 1086, it was held that the mortgagee "was not authorized to waive the security, and bring an action on the indebtedness, and the court erred in so holding, as it did, in effect, and rendering judgment for plaintiff." It seems to us that to allow the release of part of the security, and to provide for a deficiency judgment, as was done in the case before us, would be a violation of the underlying principle of the case last cited, for the mortgagee would thus get a judgment which could be enforced against the mortgagor precisely as if the mortgagee had first waived his security, and brought suit on the notes. If he can release part of the security he can release all, and thus defeat the purpose of the law, which is to confine the mortgagee to the one action, and to his security as a primary fund. If it be said that, while he cannot waive all the security, and then bring an action at law, he may waive part and foreclose on the residue, and have his deficiency judgment, the answer is that the law will not allow him to accomplish indirectly what he cannot do directly.

Numerous cases are cited in Jones, Mortg. §§ 722, 981, to the effect that, as between the mortgagor and the mortgagee, the latter may release any portion of the mortgaged premises without affecting the lien upon the residue. But the cases cited by the learned author do not deal with the rights of the mortgagee to a deficiency judgment where he releases without the consent of the mortgagor, nor does it appear in those cases that the statute was as it is here. They deal with the mortgagee's right to foreclose on the unsold portion still in the hands of the mortgagor. Under our statute, on foreclosure, the land becomes the principal debtor, and the mortgagor the surety, and his rights as surety should be preserved. It may be that, in those jurisdictions where an action is given on the debt as well as on the security, the mortgagee may release regardless of the mortgagor's rights, or may proceed regardless of the security; but in this state the law gives him but one action, and he should be confined to that, at least to the extent of requiring him first to exhaust his security before obtaining other relief. If he desires to release a part of his security, and still hold the mortgagee for any deficiency after foreclosure, he must obtain the mortgagor's consent, or see to it that in releasing he is paid full value, and gives the mortgagor credit therefor.

If

The form of deed from Brown to McDonald cannot affect the question. By it Brown's covenant was that the land was free from incumbrance, but this covenant was not such as is appurtenant to and runs with the land, under sections 1113, 1460, Civ. Code. It was a personal covenant. Lawrence v. Montgomery, 37 Cal. 183, and cases there cited. the mortgage had been foreclosed upon all the property while Brown held the title, Brown would, of course, in any event, have been liable for a deficiency, and McDonald would have had his action against Brown upon the covenant. The right of the mortgagee to a deficiency judgment, however, would not arise from the form of McDonald's deed, but from the mortgage and the statute, and from the fact that the mortgagee had not by his own act impaired his security in any manner. If he had released all of the lots but one to McDonald, without the knowledge or consent of the mortgagor, it would be unconscionable to hold that he could foreclose on the remaining lot, and have his deficiency judgment against the mortgagor. The same reasoning already stated as to the effect of the releases given by the mortgagee to various subsequent purchasers from McDonald and their grantees would apply. The covenant of the mortgagor in his deed to McDonald is not available to the mortgagee, and is wholly unnecessary for his security; nor can it in any way give to the mortgagee upon foreclosure the right to a deficiency. It is unnecessary, because the mortgagee himself has a right to a deficiency judgment when his security is exhausted, and the covenant of the mortgagor in his deed

would, if available to the mortgagee, give him no better remedy.

It was stipulated that the lots were of the market value of $125 each. The plaintiff testified that it was the understanding with some of the parties-but with whom does not clearly appear-that he (plaintiff) would release for $25 per lot;. but later along, when the defendants opened their testimony, some stipulations were entered into by the respective counsel, and among others, "it was stipulated that John Brown never consented to the release of any pieces of property from the mortgage." We think this stipulation is controlling as to the fact agreed upon by it. The plaintiff testified that "there were three hundred and forty-seven lots released at $25 a lot." It also appeared that he released block 49 (in which there were 28 lots) to the Madera school district without any payment. A simple mathematical calculation will show that these lots were released for several thousand dollars less than their agreed market value. If they had not been released, but had been included in the foreclosure proceedings, by no reasonable probability would there be any deficiency upon foreclosure. The decree, so far as it directs a deficiency to be entered against Brown, is erroneous, and should therefore be modified.

2. The next question presented is whether the court erred in directing the sale of the lots in the inverse order of their alienation. We do not understand from appellants' brief that the correctness of the rule is questioned in a case like the present one. There can be no doubt but that this is the rule in this state. Civ. Code, §§ 2899, 3433. See, also, Kent v. Williams, 114 Cal. 537, 46 Pac. 462. But, as we understand appellants' position, it is that the rule requiring sale in the inverse order of alienation was, in certain cases involved, changed by the act of the mortgagee, and this contention will next be noticed.

3. The question most discussed by appellants is as to the equities of subsequent purchasers as they are affected by the releases made by the plaintiff of certain of the mortgaged lots which had been sold by the mortgagor after plaintiff acquired the mortgage, and were resold by the mortgagor's grantee, and again and again resold by subsequent grantees. A large number of cases are cited by appellants illustrating the rights of purchasers from the mortgagor and their grantees as affected by releases made by the mortgagee. But none of them will be found to hold that the mortgagee may not release without liability to him, or impairment of his remaining security, where he does so without actual knowledge of the conveyance. As his mortgage is a lien, and creates an incumbrance alike upon all parts of the land subject to it, no subsequent change in the ownership of the mortgaged premises of which he is ignorant can in any degree limit his original rights conferred by the security. The record of subsequent conveyances is not a constructive notice to the

prior mortgagee, so as to prevent him from dealing in any manner with the mortgaged premises. He must have actual notice. The cases supporting the foregoing are numerous, and will be found cited in 2 Pom. Eq. Jur. §§ 656, 657; 3 Pom. Eq. Jur. §§ 1224-1226; 2 Jones, Mortg. §§ 1621-1624; 1 Jones, Mortg. §§ 722, 723. As to the rights of the mortgagor, who had conveyed all the mortgaged premises, they are in no wise affected by these releases, except as to the single question of plaintiff's right to a deficiency judgment, and this has already been disposed of. The only other defendants appealing are Etter, Rosenthal, Lazar, and Bank of Madera, and, as to them, it follows that, unless plaintiff had notice of their deeds, his releases to certain other purchasers, whether given before or after defendants' deeds, afford them no ground of complaint, and the utmost that can be claimed by them is that the foreclosure sale should proceed in the proper order. The court found that plaintiff had no notice or knowledge of defendants' deeds, and, the evidence upon that point being in conflict, this finding cannot be disturbed. It may be said that, inasmuch as Brown's deed to McDonald implied a covenant of warranty that no incumbrance rested on the premises, an equity thus attached in favor of McDonald which passed to his grantees and purchasers from or through them. But the covenant in Brown's deed to McDonald was personal between him and Brown, and was not a covenant running with the land, and impressed it with no such equity as would pass with the land conveyed by McDonald or his grantee. McDonald, by his grant deed, covenanted against his own acts in creating incumbrances, but not against those of his grantor, the mortgagor. McDonald's grantee took the land subject to the Brown mortgage, without any agreement, express or implied, that McDonald would pay the mortgage debt; nor did McDonald's deed operate as an assignment to his grantee of the right of action which McDonald had against Brown on the implied covenant. Lawrence v. Montgomery, supra.

4. Defendants make the point that there is no provision in our Code for partial or other releases; that the only provision relates to a full satisfaction, and that the partial satisfactions or releases operated to discharge the mortgage lien,-citing section 2938, Civ. Code. We do not think there can be any doubt but that partial releases are authorized by this and subsequent sections. Whether so or not, the universal practice of making partial releases, and their obvious convenience and importance to all persons having any interest in the mortgaged premises, would warrant us in upholding and limiting them to the purpose expressed in making them. It certainly cannot be claimed that, if a partial release is unauthorized, when made it would nevertheless operate to discharge the whole mortgage lien. The section referred to does not provide, in terms, for partial satisfactions on the margin

of the mortgage record or otherwise; but, as the partial releases in this case were either upon the margin of the record of the mortgage or in separate instruments duly acknowledged and recorded, we think this would impart notice, or be sufficient to put a person dealing with the mortgaged property upon inquiry, which, if pursued, would easily lead to the discovery of the fact.

Defendants claim that there was one particular release made by plaintiff which had the effect to completely satisfy and discharge the mortgage. It is as follows: "O. J. Woodward, Assignee, to John Brown. Dated Nov. 11, 1893. Consideration, $50. That the following land, situate in county of Madera, state of California, described as follows, to wit: 'Lots 6 and 7 in block 67 of Hughes' addition to the town of Madera,' hereby released from the lien of the mortgage made by John Brown Colony to Thomas E. Hughes, and recorded, * * together with the debt thereby secured, is fully paid,' satisfied, and discharged. [Signed] O. J. Woodward, Assignee." "Acknowledged in due form Nov. 11, 1893, and duly recorded." That portion of this document reading, "together with the debt thereby secured, is fully paid, satisfied, and discharged," does not appear as part of the record evidence. At folio 793 it appears as defendants' Exhibit 37, without the paragraph above quoted. In an affidavit made by one of defendants' attorneys, sworn to March 5, 1896, and served on plaintiff's attorney March 7, and filed March 10, 1896, this release is set out with the paragraph above quoted contained in it, and this alleged new matter, among other things, is stated in support of the motion for a new trial. The notice of this motion was served and filed February 29, 1896, and stated, among other things, that the motion would be heard "upon affidavits hereafter to be served." At the hearing, May 9, 1896, this affidavit was, on motion of plaintiff's counsel, stricken from the records, to which defendants' counsel excepted. I think it evident from the release itself, in whichever form it is to be considered, that it was not the intention of the mortgagee thereby to release the entire debt, and that it should not be extended beyond its intention. The consideration paid for the release was $50, and this was indorsed on one of the notes the same day, as follows: "Nov. 11, 1893, lots 6 and 7, block 67, $50;" and on the mortgage was indorsed the following: "Nov. 11, '93, lots 6 and 7, block 67 (release sent to Madera)." Defendants were not misled by it, for it was not made until after they had purchased. The case of Beal v. Stevens, 72 Cal. 451, 14 Pac. 186, cited by defendants, in no wise conflicts with this view.

5. There were other matters set forth in this expurgated affidavit, and defendants claim error in striking it out as to these matters as well. It is quite lengthy, and need not be set forth in this opinion. This aflida

vit is before us as part of the bill of exceptions. It was filed on March 10, 1896, and the motion for a new trial came up on May 9th following. The matters contained in it were mainly recitals of what appeared in the record, and was more in the nature of an argument on the motion than the presentation of any new fact of which the court could take notice. It was not presented by way of suggesting diminution of the record, nor was it in support of the ground of newly-discovered evidence, for that was not made a ground in the motion. All the points presented in the affidavit are made in the briefs of counsel for the defendants, and do not require its aid for their full determination which is given them in this opinion. I cannot see that they were prejudiced by striking it out.

6. Defendants assign as error that the court allowed the affidavit of personal service of summons on certain defendants, made September 15, 1894, to be amended, and filed September 15, 1896, nunc pro tunc. The particular in which the amendment was made was in stating that affiant was, at the time he served the summons, over the age of 18 years, which, by inadvertence, he omitted to state. The objection made was that the court could not, after judgment entered, allow the affidavit to be amended, and that the defaults entered were unauthorized. The order was ex parte, and directed that the amended affidavit be made part of the judgment roll. In Herman v. Santee, 103 Cal. 519, 37 Pac. 509, it was held that this might be done, but in that case opposing counsel was present in court, and had a hearing on the motion, although not previously notified. I cannot see, however, but that the reasoning in that case and the authorities cited in it would allow such an amendment ex parte, and without notice, although such practice is not to be commended. In such event the party claiming to be injured could afterwards appear, and move to set aside and vacate the order, and such a motion should be granted upon a showing that the amendment was not true in fact. Whether, however, the motion here was of such character as to require previous notice need not be determined, for defendants had subsequent notice, and full opportunity to take steps to have the truth of the matter ascertained, and cause the order to be vacated if erroneously entered. They filed an affidavit calling attention to the amended affidavit, and objected to the return of the summons with the amended affidavits, claiming them to be insufficient, but did not controvert any fact stated in them, and defendants did not ask to have the order entered nunc pro tunc vacated for any reason.

7. Defendants assign as error that plaintiff is not the real party in interest, and has no right to prosecute the action, and that this issue is raised by the pleadings, and the court did not find upon this issue., The court found that plaintiff was the owner and holder of

the notes and mortgage when the action was brought; and the evidence shows he took them by written and recorded assignment May 1, 1891. There is some evidence tending to show that he originally took them while acting for the First National Bank of Fresno, of which he was president, but he testified that he finally bought them outright. The written assignment of Thomas E. Hughes (mortgagee), dated February 12, 1893, to W. M. Hughes, of all his right to the notes and mortgage, is in evidence, and in it he recites that the notes and mortgage are held by O. J. Woodward (plaintiff) and the First National Bank as collateral security for his indebtedness to them. It does not appear that plaintiff had knowledge of this assignment, and, even if he had, his assignor could not bind him by recitals in an assignment to another assignee. The finding is justified by the evidence, and substantially finds on the issue raised by defendants'

answer.

8. Defendants claim that the affidavit for the order of publication of summons is void, as not in compliance with section 412, Code Civ. Proc. The affidavit gives the names of the defendants, and states that they resided without the state, and names the state in which each resides; it refers to the verified complaint, and makes it a part of the affidavit, and states that the defendants are proper and necessary parties to the action; that affiant has a good cause of action against the defendants, as he is advised by his counsel, and verily believes. The complaint states a good cause of action. It was not necessary to state that the sheriff had returned the summons, and it is immaterial whether the summons had been returned when the affidavit was made. I see no defect in the affidavit.

9. It is further objected that the affidavit of publication is void because it does not state that affiant was the foreman, printer, or principal clerk, and does not state that the summons was published once a week, nor the length of time published; citing section 415, Code Civ. Proc. The affidavit was sworn to by the publisher and proprietor of the paper. The Code, supra, says the proof must be made by the "printer, or his foreman or principal clerk." It was held under the practice act, where the word "printer" is used that the word "proprietor" is, in the sense of the statute, synonymous with "printer." Quivey v. Porter, 37 Cal. 458. There is nothing in this point. The affidavit states that the Madera Tribune is a daily and weekly newspaper, "and that the summons, of which the annexed is a true and correct printed copy, has been published weekly in the said newspaper, commencing on the 17th day of May, A. D. 1894, and ending on the 26th day of July, A. D. 1894, inclusive, in each and every one of the consecutive weekly issues of said newspaper issued during said period of time, being the regular weekly issues thereof." Some doubt might arise as to which one of the papers, the daily or weekly,