provided for. There was also an attempt to regulate the rights of one Kate A. Burke, who held a mortgage on a portion of the property, but was not a party to the agree ment. Provision was made for the reconveyance of the property in case of payment, for its sale and the execution of deeds in case of default, for the application of proceeds of any sale, and the return of any surplus to the parties of the first part. The third parties were specially authorized to pay, without notice, and according to their best judgment, all liens and incumbrances on the property, except taxes, and, in their discretion, to contest the payment of the same, and prosecute and defend suits to protect the title to the property. All payments and expenditures thus made were to be deemed secured' by the instrument above mentioned. The granting clause in the instrument reads as follows: "That said par ties of the first part, in consideration of the aforesaid indebtedness to the parties of the third part, and of one dollar to them in hand paid by the parties of the second part, the receipt whereof is hereby acknowledged, and for the purpose of securing the payment of said promissory note, and of any sum or sums of money with interest thereon, that may be paid or advanced by, or may otherwise be due to the parties of the third part under the provisions of this instrument, do by these presents grant, bargain, sell, convey and confirm unto the said party of the second part. and to its successors and assigns, the pieces and parcels of land situate in the county of Madera, state of California, described as follows, to wit."

The parties of the first part having failed to pay the whole or any part of the indebtedness evidenced by the note, according to the terms thereof, the plaintiffs, in writing, demanded that the trustee proceed to sell the premises as provided in the instrument in question, and the second party, in writing, expressly refused to comply with such demand. Thereupon this action was brought by plaintiffs against the first and second parties named in the instrument, and numerous other parties who claimed some interest in the premises. Many of the defendants failed to appear, and their default was duly entered, but L. W., W. J., H. A., J. J., F. W., Louisa, Dora. Theckla, and John C. Krohn appeared, and. by motion to strike out the allegations of the complaint and demurrer, raised the point that the court had no juris. diction of the parties or of the subject-matter of the action, and the further point that the complaint did not state facts sufficient to constitute a cause of action. The motion and demurrer were overruled, and the court entered judgment, decreeing that the sum of $10.221.60 was due to plaintiffs upon the debt and deed of trust set forth in the complaint and directing that the property described in said deed of trust be sold, and the

proceeds be applied to the payment of the debt due to plaintiffs, and that a judgment for any deficiency be docketed against the parties of the first part named in said instru ment. From the judgment so entered, the Krohns, who appeared by motion and demurrer, appeal.

Appellants base their demand for reversal on the single ground that an action to foreclose a trust deed cannot be maintained. If it be conceded that Kraft v. Bryan, 140 Cal. 80, 73 Pac. 745, and Koch v. Briggs, 14 Cal. 256, 73 Am. Dec. 651, cited in support of this contention, go to the extent of holding that an action to foreclose a trust deed can never be maintained under any state of facts, still we think that these authorities, and the legal principles upon which they rest, cannot be applied here.

To begin with, the instrument under consideration is something more than a trust deed. It defines the rights of the first and third parties in detail, and creates a distinct and continuing obligation on the part of the former to reimburse the latter for all sums expended, as sureties on the official bond of L. W. Krohn or as a result of their suretyship. It allows the third parties to pay off liens and incumbrances, and defend or prosecute suits, to protect the title to the property, according to their own judgment, without consulting anybody, or rendering any account of disbursements, made in this behalf, to the trustee. The trustee obligated himself, if possible, to obtain notes, secured by mortgage, from other sureties, which notes, if obtained, were to be held in trust for plaintiffs, all payments thereon to be applied in payment of the trust note. The conveyance expressly included certain notes and mortgages held by the Krohns against various parties, and all payments made to the trustee thereon were likewise to be applied on the trust note. We cannot imagine how the rights and obligations of the respective parties to such an instrument could be ascertained, adjusted, and conserved without resort to an action of some kind in some judicial form. Indeed, an accounting by the trustee and the third parties, for sums received by the former or expended by the latter, was indispensable, and a sale might have been enjoined until such accounting was had. More v. Calkins, 85 Cal. 188, 24 Pac. 729. The instrument on its face shows that doubt and uncertainty would exist in the absence of such an accounting, and that complications, involving the power of the trustee to sell the land, must result from its very terms, if notes and mortgages from the other sureties were obtained, and the amounts due on the various mortgages assigned by the instrument were paid or unpaid. Under these circumstances a proceeding in equity was necessary to a satisfactory adjustment of the matters involved. Waiving these considerations, however, this case cannot be classed

or treated as an action to foreclose a trust deed. Such an action could only be brought by the trustee, while this action is brought by the beneficiaries against trusters, trustee, and others. The trustee having refused to comply with the demand that he execute the trust, the beneficiaries were forced to appeal to a court of equity, and in doing so they, very properly laid all of the facts before the court, and asked for the "usual decree or such decree or order as the court may see fit to make." The court, under such circumstances, would, upon well-established principles, take jurisdiction of the whole subjectmatter of litigation, and also decree a sale of the real estate proper. Kraft v. De Forest, 53 Cal. 659; Am. & Eng. Ency. of Law, vol. 28, p. 839; Washburn on Real Property, vol. 2, p. 523; Jones on Mortgages, § 1773. Equity will not permit litigation by piecemeal. but will determine the whole controversy where all the facts and parties are before it. Watson v. Sutro, 86 Cal. 529, 24 Pac. 172, 25 Pac. 64; Booker v. Aitken, 140 Cal. 473. 74 Pac. 11: More v. Calkins, supra. The granting clause clearly shows that the conveyance was made as security only, and it is well settled in this state that trust deeds in the nature of a mortgage convey only a defeasible estate having none of the incidents of ownership except that the trustees are deemed to have such an estate as will enable them to convey. Sacramento Bank v. Alcorn, 121 Cal. 383, 53 Pac. 813. They are in effect mortgages with power to sell. Hodg kins v. Wright. 127 Cal. 692, 60 Pac. 431; Pomeroy. Eq. Jur. 995. Hence, there was no reason in law or logic why the court could not act directly, without forcing the trustee to sell and convey the premises. Under the circumstances, the plaintiffs could maintain an action to have the accounts and respective rights of the parties adjusted and the property sold, and the court could order the sale to be made by its own commissioner. More v. Calkins, 85 Cal. 190, 24 Pac. 729. Under the terms of the instrument, the court could direct a judgment for any deficiency to be entered in favor of the plaintiffs against the four trusters, and its powers as a court of equity extended to a final adjustment of the rights of the parties, to the end that further litigation might be avoided.

A trustee may always apply to a court of equity for aid or directions, and such courts are likewise open to any of the other parties when a dispute as to the existence, character, or terms of a trust arises. And where an accounting is necessary or a question as to the amount due exists, or where a doubt arises as to whether the instrument creating a lien is a mortgage or deed of trust, recourse to a court is the safest, if not the only, course to pursue. Banta v. Wise, 135 Cal. 279, 67 Pac. 129; Godfrey v. Munroe, 101 Cal. 227. 35 Pac. 761; More v. Calkins, 85 Cal. 188, 24 Pac. 729. "Trust deeds to secure payment

of a debt are an anomaly in our system, and are admittedly inconsistent with the policy of this state in regard to mortgages." This being the case, it would indeed be a harsh rule that would exclude any of the parties to such an instrument from the courts: hence, "it has only been held that such deeds are not mortgages which require foreclosure." Hodgkins v. Wright, supra. But if it be admitted that the rule absolutely forbids foreclosure of trust deeds, the mere use of the formula "barred and foreclosed of and from all equity of redemption," in the prayer of the complaint and judgment, does not conclusively or otherwise establish the nature of the action nor impair the validity of the judgment. Such formula cannot injure any of the parties, and the rule "superfluity does not vitiate" must be applied. "The law regards form less than substance," and looking at the substantial rights of the parties as disclosed by the instrument, and the subsequent conduct of the trustee, we think the judgment should be, and it is hereby, affirmed.

Where an administrator anticipates distribution and advanced funds to the widow, such advancement was not a proper subject for inclusion in the administrator's final account, he being only entitled to reimbursement from the widow's distributive share on final distribution.

[Ed. Note.-For cases in point. see vol. 22, Cent. Dig. Executors and Administrators, $$ 1219-1228. 2007.]

2. SAME-ATTORNEY'S FEES-EXPENSES-EXTRAORDINARY SERVICES.

That an administrator made no claim in prior accounts for an allowance of attorney's fees, expenses, and for extraordinary services, did not constitute an absolute waiver thereof. [Ed. Note. For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, § 2068.1

3. SAME-BONDS-RIGHTS OF SURETIES.

In an action on an administrator's bond, his sureties are not entitled to credit for attorney's fees, expenses, and for extraordinary services to which the administrator never made claim in the probate court, the sureties' right to subrogation with reference to such claims, it any, being enforceable only by petition in the probate court.

4. SAME-ADMINISTRATOR'S DUTY-EXTENT.

The measure of an administrator's duty is to act with fidelity and with that degree of prudence and diligence which a man of ordinary judgment would be expected to bestow on his own affairs of a like nature.

[Ed. Note. For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, §§ 360, 397.]

5. SAME-COLLECTION OF ASSETS.

Where the maker of a note received by an administrator was at all times insolvent, and

the administrator placed the note in the hands of a collector without being able to realize anything thereon, he was not guilty of negligence because of his mere failure to sue thereon.

[Ed. Note. For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, § 394.]

Appeal from Superior Court, Santa Barbara County; B. T. Williams, Judge pro tem.

Action by Elisa P. Elizalde, as administratrix of the estate of Marcos A. Elizalde, deceased, against P. W. Murphy and others. From a judgment for plaintiff for less than the relief demanded, she appeals. Reversed.

McD. R. Venable and B. F. Thomas, for appellant. W. A. Richardson, W. H. Spencer, and Wm. Shipsey, for respondents.

ALLEN, J. Action upon an administrator's bond. Judgment for plaintiff for a lesser amount than claimed in the complaint. Plaintiff appeals from the order denying a new trial.

It is made to appear in the record that one Graves was appointed administrator of the estate of Elizalde on the 20th day of January, 1894, and executed a bond at the date of such appointment, and certain subsequent bonds, as required by the order of the court; that on May 28, 1898, said administrator filed his second annual account, which was duly allowed, from which it appears that on said date he held in his possession $5,133.50 belonging to said estate; that the administrator died July 15, 1900, without rendering any further account; that after the filing of his said account the administrator received $562 in addition. Upon a trial of this action, the court below found the administrator had received, and was chargeable with, $5,696, and credited him with certain payments not disputed, together with other payments the subject of controversy upon this appeal-one of $940 advanced to the widow as part of her distributive share, and $550 for expenses and attorney's fees to one Leme, and for expenses and extraordinary services of the administrator.

Appellant's contention is that these credits last mentioned were not proper matters to be credited by the court in this action, and no credit therefor should be allowed at the instance of the sureties. With this we agree. In so far as the advance to the widow is concerned, it was not even proper subject of the final account. Estate of Willey, 140 Cal. 240, 73 Pac. 998; Estate of Rose, 80 Cal. 179, 22 Pac. 86. The only rights of an administrator who anticipates the distribution to the widow or heirs and pays in advance of such distribution, is when distribution is ordered to have such payments retired therefrom and receive a credit on account thereof from the distributive share so to be charged. Estate of Willey, supra. It does not even appear that any sum will be due the widow upon final distribution; and it is not material what property may have

heretofore been distributed to her, against which the administrator in making the advancements made no claim. Whatever may be the rights of subrogation to which defendants are entitled, the same can only be worked out upon the final decree of distribution. We are of opinion, also, that the allowance of attorney's fees, expenses, and for extraordinary services are matters which can only be adjudicated in the probate court in the final or some subsequent account. The mere fact that the administrator made no such claim when filing his previous accounts should not be taken as an absolute waiver. But the reimbursement to which an administrator is entitled on account of such payments or such services is a right personal to himself, and one which he may waive; and until it is asserted, either by the administrator or by his personal representatives, in an account and upon a petition presented to the probate court, they are not proper subjects of adjudication, and were we to say that this right of the principal on the bond to assert the claim is one to which sureties might be subrogated, yet it must follow that such sureties would be restricted in the enforcement of such subrogated rights to the mode prescribed for their enforcement by the principal. In re Moore, 96 Cal. 526, 31 Pac. 384; In re Levinson, 108 Cal. 456, 41 Pac. 483, 42 Pac. 479. And matters which are the subject of account are exclusively within the jurisdiction of the probate court. Toland v. Earl, 129 Cal. 152, 61 Pac. 914, 79 Am. St. Rep. 100; Estate of Freud, 134 Cal. 336, 66 Pac. 476.

Further objection is made by appellant to the refusal of the court to charge the administrator with the inventoried amount of a note of one Dargie. The court found that there was no negligence upon the part of the administrator in his failure to realize upon this asset. "It is true that when an administrator receives a note, and the maker thereof is solvent, but afterwards becomes insolvent, the burden of proof is on him to show that with due diligence he could not have collected it." In re Moore, 96 Cal. 526, 31 Pac. 584. The measure of an administrator's duty is to act with fidelity and with that degree of prudence and diligence which a man of ordinary judgment would be expected to bestow upon his own affairs of a like nature. In re Moore, supra. There is evidence in the record tending to show that, notwithstanding the return in the inventory, Dargie was at all times insolvent. There is evidence tending to show that the note was placed in the hands of a collector and that nothing could be realized thereon. This being true, were it even to be assumed that the taking of a new note with the insolvent wife as surety was not warranted, yet no loss upon the estate would be entailed. The mere failure to sue does not establish negligence. It is only the failure to proceed when a reasonable prospect of collection is apparent which should be said

I concur: GRAY, P. J.

SMITH, J. (concurring). I concur in the order of reversal, and also in much of the reasoning of the opinion of Mr. Justice Allen. But the reversal should, I think, be placed on the broader principle, established by the decisions of the Supreme Court, that a suit cannot be maintained against the sureties on an administrator's bond until there has been a settlement of his account, either in the probate proceedings under section 1629 of the Code of Civil Procedure, or by a bill in equity brought for that purpose. Graff v. Mesmer, 52 Cal. 636; Chaquette v. Ortet, 60 Cal. 594; Weihe v. Statham, 67 Cal. 84, 7 Pac. 143; Reither v. Murdock, 135 Cal. 197, 67 Pac. 784; Cook v. Ceas, 143 Cal. 225, 77 Pac. 65. In such a bill brought against the administrator the sureties may, perhaps, be joined (Chaquette v. Ortet, supra); and I can see no objection to this course. But in the present case the administratrix of the deceased Graves was not made a party; and, indeed, the demand of the defendants by proper supplemental pleadings to bring her in as a defendant was denied by the court. This error may be cured by a proper order requir ing her to be brought in as a defendant (Code Civ. Proc. § 389); but the question will still remain whether the court will then have jurisdiction of the case. This question, under the existing Constitution and some of the older authorities, is not altogether clear. Generally speaking, the matter of accounts of administrators, like other matters of probate jurisdiction, belongs exclusively to the probate court. Hope v. Jones, 24 Cal. 93; Gurnee v. Maloney, 38 Cal. 87, 88, 99 Am. Dec. 352; Weihe v. Statham, 67 Cal. 84, 7 Pac. 143; Burris v. Kennedy, 108 Cal. 331, 41 Pac. 458. This is admittedly the case with regard to administrators generally; and by the express provision of the law an administrator whose authority has ceased, if he is still alive, may be cited to account (Code Civ. Proc. 1629), and I can see no reason to suppose that it was intended to exclude the administrator of a deceased administrator from the provisions of this section. The language of the section, in describing the case provided for, applies equally to a deceased administrator as to any other; and there is nothing in its provisions to indicate an intention not to include his administrator, except in the use of the word "he," in the expression "he may be cited," etc. His case, I think, comes within the reason, and, therefore, presumably, within the intention of the

But

I would have no difficulty, therefore, were the question a new one, in thus construing the provisions of the section. under the old law there was a similar provision with reference to the probate court (Probate Act [St. 1850, p. 397, c. 129], § 230); and it was held, in effect, that the probate court did not have such authority, and that the account of a deceased administrator could be settled only by a suit in the district court sitting as a court of equity (Bush v. Lindsey, 44 Cal. 121; Wetzler v. Fitch, 52 Cal. 638; Chaquette v. Ortet, 60 Cal. 594; In re Allgier, 65 Cal. 228, 3 Pac. 849); and the rule has since been applied, in at least one case, to the superior court in the exercise of its probate jurisdiction. Estate of Curtiss, 65 Cal. 572, 4 Pac. 578. But with regard to the question of jurisdiction, there is a manifest difference between the old probate court and the superior court sitting in probate. The former had such jurisdiction only as was conferred upon it by the Legislature (Const. of 1849, art. 6, § 8), while under the present Constitution the superior court has jurisdiction "of all matters of probate" (Const. art. 6, § 5); and it has also such equitable jurisdiction as may be necessary to the exercise of its proper functions. Burris v. Kennedy, 108 Cal. 331, 41 Pac. 458; Heydenfeldt v. Superior Court, 117 Cal. 348, 49 Pac. 210; Toland v. Earl, 129 Cal. 148, 61 Pac. 914, 79 Am. St. Rep. 100; Estate of Freud, 131 Cal. 673, 63 Pac. 1080, 82 Am. St. Rep. 407; More v. More, 133 Cal. 494, 65 Pac. 1044, 85 Am. St. Rep. 166. It would seem, therefore, that, with this extensive jurisdiction, the court must have the power to require an accounting from the administrator of a deceased administrator, either under the provisions of section 1629 and in the mode there prescribed, or by virtue of its general constitutional jurisdiction and in such mode as the necessity of the case may require; and that its jurisdiction in this regard should be held exclusive. I assume, therefore, upon the authority of the decisions cited, that it is within the power of the court in the administration of an estate to adopt as the mode of procedure the form of a bill in equity; and to this no objection can be urged when the suit, as in this case, is in the court charged with the administration of the estate; but in such case, the equity suit must be regarded as merely ancillary to the administration and as a part of the proceedings therein. The court will, therefore, in the present case, upon making the proper parties, have as full jurisdiction to pass on all the questions presented to it as it would have in an ordinary proceeding in the matter of the estate. It will, therefore, not only have jurisdiction of the several questions relating to allowances for extraordinary services, etc., but also to the alleged payment of $940 to Mrs. Victoria Elizalde, who for this purpose should be made a party-as was demanded by the defendants in the case below. As to this, the

action of the court should be in conformity with the course pursued in the matter of the Estate of Moore, 96 Cal. 527, 530, 31 Pac. 584, the authority of which case has not been affected by the later decision in Estate of Willey, 140 Cal. 241, 73 Pac. 998. I am of the opinion, also, that the credit claimed by the defendants for administrator's fees should be passed upon, as well as every other question that may arise between the pending estate and the estate of the deceased administrator that could be determined in an ordinary proceeding for the settlement of an administrator's account.

(4 Cal. App. 169)

BERGEROW v. PARKER, Auditor. (Court of Appeal, First District, California. July 24, 1906.)

1. PLEADING-APPLICATION FOR JUDGMENT

AMENDMENT.

Plaintiff filed a verified complaint for mandamus against defendant, and defendant filed an unverified answer, whereupon plaintiff moved for judgment on the pleadings. Held, that plaintiff's motion was in the nature of a demurrer to the answer, and it appearing that the defect could be obviated by amendment, it was within the court's discretion to deny plaintiff's motion and permit defendant to amend.

2. OFFICERS DISQUALIFICATION-ARREST FOR FELONY.

Where a constable was arrested for a felony, but the charge was subsequently dismissed without any hearing, neither the arrest nor his incarceration operated as a disqualification so as to create a vacancy in his office. 3. SAME-STATUTES-CONSTRUCTION.

Pol. Code, § 996, subd. 7, provides that an office becomes vacant by the ceasing of the incumbent to discharge the duties of the office for a period of three consecutive months, except when prevented by sickness or when absent from the state by permission of the Legislature. Held, that such section contemplated a "voluntary" abandonment or nonuser of the office for three consecutive months, and that an involuntary failure on the part of an incumbent to perform the duties of his office, caused by his incarceration for a felony during the statutory period, did not operate as an abandonment of the office within such section.

4. SAME-RIGHT TO SALARY.

Where plaintiff held the legal title to the office of constable of a town, he was entitled to receive the salary which attached as an incident to the office.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Officers, §§ 132-141.]

Appeal from Superior Court, Santa Clara County; M. H. Hyland, Judge.

Action for mandamus by Frederick Bergerow against W. F. Parker, as auditor of Santa Clara county. From a judgment for defendant, plaintiff appeals. Reversed.

B. A. Herrington and George W. Waldorf, for appellant. James H. Campbell, for respondent.

HARRISON, P. J. The appellant was on June 30, 1900, a resident of the township of Alviso, in the county of Santa Clara, and eligible to the position of constable of that township, and was on said day regularly ap

pointed by the board of supervisors of the county of Santa Clara constable of that township to fill a vacancy then and theretofore existing in said office, and on the same day qualified for said position by filing an ap proved bond and taking the oath of office as required by law, and entered upon the discharge of his duties as such constable. He was arrested July 15, 1900, upon a charge of murder, and was held and prosecuted upon said charge, and confined in the county jail at San Jose continuously from that date until July 26, 1902. On the last-named day, on motion of the district attorney of said county, the said charge was dismissed by the superior court, and the appellant was released from confinement, and immediately returned to Alviso township, and continuously resided there and performed the duties of constable of said township until August 16, 1902, on which day he ceased to be a resident of the county. He never resigned his position or voluntarily ceased the performance of any of the duties of his office, nor did the board of supervisors of the county, or any body with authority so to do, at any time between his appointment and August 16, 1902, declare said office vacant, or take any action therefor or for òusting him therefrom. The defendant is the auditor of the county of Santa Clara, and prior to the commencement of this action the appellant demanded of him that he draw a warrant in his favor upon the treasurer of the county for his salary as such constable at the rate of $25 a month from April 1, 1901, to August 15, 1902, as provided by the county government act of 1901, amounting to $412.50. Upon the refusal of the defendant to comply with his demand he applied to the superior court of said county for a writ of mandate, commanding him so to do. The application was submitted to the court upon an agreed statement of the foregoing facts, and the court found therefrom that the appellant ceased to be qualified to fill and discharge the duties of said office on the 15th day of July, 1900, and that the office became vacant on October 15, 1900, and on that day the plaintiff ceased to be such constable, and was not such constable at any time between April 1, 1901, and August 15, 1902, and held that he "was not and is not entitled to any compensation whatever as constable of said Alviso township for any period subsequent to October 15, 1900." The appellant moved for a new trial, which was denied, and from this order the present appeal has been taken.

1. The complaint was verified, and the defendant filed an answer thereto without verifying the same. Thereafter the plaintiff, upon proper motion therefor, moved the court for judgment upon the pleadings as prayed for in his complaint, upon the ground that the answer on file constituted no defense to his cause of action. At the hearing of the motion the court denied the same, and granted the defendant leave to serve and file an amended answer, to which ruling the plaintiff