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ultimate fact, but if we should concede the (Blakeman v. Miller, 136 Cal. 139, 68 Pac. rule to be as claimed, the finding that Isaac | 587, 89 Am. St. Rep. 120). Again, the arguRipperdan "was in full possession of his ment is made that the effecc of the various mental faculties and fully understood the instruments of May 4, 1901, was to transfer transaction" amply covers the issue. Civ. the property to Mrs. Weldy and Mrs. Jones Code, $ 38, provides that “a person entirely in trust for the maintenance of the grantor without understanding has no power to make during his life-a purpose which, it is claima contract of any kind. *
* *" Section ed, is not authorized by Civ. Code, § 857-or 39 reads: "A. conveyance or other contract | tliat, if the trust be valid, it terminated at of a person of unsound mind, but not entirely the grantor's death, and there is a resulting without understanding, made before his in- trust in favor of his estate. We need not capacity has been judicially determined, is consider whether any trust was created or subject to rescission, as provided in the chap- sought to be created by the transaction of ter on rescission of this Code.” In the one May 4, 1901, for the reason that the question case the contract is void, in the other merely is not within the issues made by the pleadvoidable. See More v. Calkins, 85 Cal. 177, ings. The complaint sets forth an ordinary 24 Pac. 729. In the case at bar no rescission deed and bill of sale, which, it is alleged, has been or is attempted. Plaintiffs claim were procured without consideration by the that the deed and bill of sale were absolutely undue influence and fraud (false and spevoid from the beginning. They attempted cious promises) of the defendants Weldy and to establish a case within the purview of Jones, and which were signed by one incomsection 38. The phrase "entirely without petent to transact business. These allegaunderstanding," as used in that section, tions were denied. The complaint nowhere means a want of capacity to understand charged that there was a conveyance upon transactions of the kind involved Jacks v. express trusts, whether for authorized or unEstee, 139 Cal. 507, 73 Pac. 217. It is im- authorized purposes. No issue was presented possible that a person without the capacity which would have authorized the court to of understanding a particular transaction can set aside the deed except for fraud, undue in fact understand it. The finding, therefore, influence, or incompetency. A determination that at the time of the execution and delivery toat the conveyance was void because made of the deed and bill of sale Isaac Ripperdan in trust for purposes not permitted by the "fully understood the transaction,” involves Code, or that it conveyed no beneficial innecessarily the inference that he was not terest beyond the life of the grantor, would "entirely without understanding,” and is a have been outside of the issues, and a finding finding of the ultimate fact in issue. Find- of facts from which such determination folings are to be construed so as to support the lowed would, if made, have been entitled to judgment, rather than defeat it (Warren v. no consideration. Hopkins, 110 Cal. 506, 42 Pac. 986), and Finally, with reference to this agreement, when, from the facts found by the court, it is argued that the provision against alienother facts may be inferred which will sup- ating the estate during the lifetime of Isaac port the judgment, such inference will be is void, and that with it the consideration deemed to have been made by the trial court. for the deed fails. If the deed transferred Breeze v. Brooks, 97 Cal. 77, 31 Pac. 742, 22 a title in fee simple, a covenant by the granL. R. A. 257 ; Krasky v. Wollpert, 134 Cal. tees that they would not transfer the prop338, 66 Pac. 309.
erty is void, as repugnant to the interest The appellants base several contentions created by the deed. Section 711 of the vil upon the fact, shown by the evidence, that Code declares against repugnant conditions the deed and bill of sale of May 4, 1901, restraining alienation. “But the rule does were executed, together with the agreement rot depend upon the mere form in which the above mentioned, whereby Mrs. Weldy and restraint is imposed. It avoids, as well, Mrs. Jones agreed that he should, to a certain covenants of the grantee against alienation extent, have the use of the property during as conditions of like nature imposed by the his life, that they would give him certain grantor. Such covenants, if not within the care and attention, and that they would pay letter of section 711 of the Civil Code, are bim $2,000 a year during his life. It is yet obnoxious to the policy of which that laimed that all the instruments must be section is a partial expression.” Prey V. read together, and that, so read, they con- Stanley, 110 Cal. 423, 42 Pac. 908. But the stitute a conveyance to take effect at the mere fact that a part of the consideration grantor's death, reserving to the grantor the for the transfer consisted of a covenant use and enjoyment of the property during which could not be legally enforced does his life. If this construction were adopted, not make the deed absolutely void. A deed it would not affect the validity of the deed made freely, voluntarily, and without fraud as a conveyance. Any objection to which by one who is competent passes title, even deeds creating estates to commence in fu- though the consideration may fail in whole or ture may have been subject at common law in part. Whether the consideration failed (Hawes v. Stebbins, 49 Cal. 369 ; Chandler
or became void, so as to afford a basis for v. Chandler, 55 Cal. 270) has been removed rescission, is another question, which does in this state by section 767 of the Civil Code not arise here. If the invalidity of the prom. ise not to convey the property during Isaac's Cole & Cole for appellants. L. M. Fail, for life furnishes a ground for rescission under respondents. sections 1689, 3406, and 3407 of the Civil Code (which may well be doubted), such PER CURIAM. The motion of respondent ground has not been alleged, nor such relief
to dismiss the appeal in the above-entitled sought. Appellants contend that under sec
cause is granted. The time for the filing of tion 1608 of the Civil Code the entire contract
the appellant's points and authorities expired is void if any part of the consideration is
long before the 18th day of April, 1906. No unlawful. Whatever may be the effect of
points and authorities had been filed up to this section as to contracts which are ex
the 7th day of May last, and on that day the ecutory in whole or in part, we are satisfied
motion to dismiss the appeal was filed in that it cannot be construed so as to permit
this court. The act of the Governor in prothe grantor of property, who has received
claiming legal holidays, beginning with the and retained the consideration for his con
19th of April last, could have no effect whatveyance, to recover the property conveyed
ever upon the right of the appellant to file upon the sole ground that the consideration
his points and authorities in a case such as was unlawful in part. It is the general rule
this, where his time had expired before any that where a contract, based on a con
holidays were proclaimed. sideration contrary to law, immoral, or opposed to public policy, has been fully and voluntarily. executed, if the parties are in
(4 Cal. A. 78) pari delicto, the courts will not interfere to disturb the acquired rights of either at the
WEMPLE . YOSEMITE GOLD MIN. CO. instance of the other. 9 Cyc. 549; Hill v.
et al. (Civ. 180.) Freeman, 73 Ala. 200, 49 Am. Rep. 48; MC- (Court of Appeal, Third District, California. Gregor v. Donnelly, 67 Cal. 149, 7 Pac. 422;
July 9, 1906.) Patterson v. Doner, 48 Cal. 369; St. Louis, 1. MINES AND MINERALS-MORTGAGES-MINetc., R. R. Co. v. Mathers, 71 Ill. 592, 22 Am.
ING CLAIMS-DESCRIPTION. Rep. 122; Myers v. Melnrath, 101 Mass. 366,
When a mortgage on a mining claim was
executed the mortgagor held a deed for an un3 Am. Rep. 368; Brower v. Fass (Neb.) 83 divided interest in the "Slap Jack Mine," and N. W. 832. In view of this rule (in support also a deed of a mine known as the "Jim of which many more cases might be cited),
Blaine Mine," located by W., the boundaries of section 1608 must be held to have application
which coincided with the “Slap Jack Mine."
The mortgage described the property as the only to contracts which are, in part at least, “Jim Blaine Mining Claim," being the propexecutory.
erty located by W. on January 1, 1899, of recThere are no other points which, in our
ord, etc., together with all mining property de
scribed in the deed of conveyance made by opinion, require special notice.
B. to the mortgagor, of record, etc. It was The judgment and order appealed from are thereafter determined that the location of the affirmed.
"Jim Blaine Mine" by W. was ineffectual, and that B.'s deed to the mortgagor conveyed noth
ing. IIeld, that the description was sufficient We concur: ANGELLOTTI, J.; SIIAW, J. to pass the interest acquired by the mortgagor
in the "Slap Jack Mine."
2. MORTGAGES-PARTIES JUNIOR LIENORS. (149 Cal. 392)
Code Civ. Proc. $ 726, provides that no perEGRESSY et al. v. STANSBURY et al. (L. son holding a conveyance from or under the A. 1,873.)
mortgagor of the property mortgaged or having
a lien thereon, which conveyance or lien does nor (Supreme Court of California. July 2, 1906.) appear of record at the time of the commence1. APPEAL - BRIEFS FILING TIME
ment of the foreclosure proceedings need be made DISMISSAL.
a party to the action, etc. Held that, where Where the time for filing appellant's points
a junior mortgagee, whose mortgage appeared and authorities expired prior to April 18, 1906,
of record before the commencement of a suit and no points and authorities were filed up to
to foreclose the senior mortgage, was not made May 7th, on which date a motion to disiniss
a party to such suit, the rights of the junior the appeal was filed, the motion must be grant
mortgagee and his assignee were unaffected by ed.
the foreclosure decree. (Ed. Note.-For cases in point, see vol. 3,
[Ed. Note.-For cases in point, see vol. 35, Cent. Dig. Appeal and Error, 88 3108-3110.]
Cent. Dig. Mortgages, § 1692.] 2. SAME - HOLIDAYS - EFFECT.
3. SAME-REDEMPTION. The act of the Governor in proclaiming
Where the holder of a junior mortgage legal holidays, beginning with April 19, 1906, was not made a party to a suit to foreclose a was inapplicable to the right of an appellant to senior mortgage, the holder of such junior mortfile his points and authorities on an appeal, the gage was only entitled to redeem as against the time for the filing of which had expired before senior mortgage so foreclosed. any holidays were proclaimed.
4. SAME-REDEMPTION-EFFECT. In Bank. Appeal from Superior Court,
Where the holder of a junior mortgage on
certain mining property was not made a parLos Angeles County
ty to a suit to foreclose a senior mortgage, and Action by S. Egressy and another against the property was redeemed by the successors Charles Stansbury and another. Judgment
in interest of the mortgagors, such redemption for defendants, and plaintiffs appeal. On
operated as a payment of the senior mortgage
debt, and the senior mortgage would not, there. motion to dismiss appeal. Granted
fore, be kept alive in equity for the benefit of
the redemptioners as against the holders of mine, each, to Harry Argall, F'. I. Argall, B. the junior mortgage.
Griswold and F. L. Emerson. By deed, dated [Ed. Note.For cases in point, see vol. 35,
August 6, 1896, the Argalls conveyed to Cent. Dig. Mortgages, $$ 1878–1886.]
Jacob Miller an undivided 1/20 interest in Appeal from Superior Court, Tuolumne the mine. The title then stood 9/40 in each County; G. W. Nicol, Judge.
of the Argalls, 10/40 in defendant Griswold, Action by E. H. Wemple against Yosemite
10/40 in defendant F. L. Emerson and 2/40 Gold Mining Company and others. From a in defendant Miller. The court found that judgment for plaintiff, defendants appeal.
at the commencement of this action there Afhrned.
was, and still is, pending a suit to quiet the H. A. Blanchard, for appellant Gold Min. title of the defendants, the Emersons, BritCo. J. P. O'Brien and Crittenden Hampton, ton, and Miller as plaintiffs against the Arfor appellant Britton. W. C. Kennedy, F. galls, Yosemite Gold Mining Company and W. Street, and W. M. Beggs, for respondent. Yosemite Gold Mining & Milling Company,
and that the action was at the time of the CHIPMAN, P. J. Foreclosure of mort- present trial on appeal to the Supreme Court, gage. Plaintiff had judgment from which, and undecided. On June 23, 1897, the Arand from the order denying their motion for galls, Griswold and said F. L. Einerson (Mila new trial, all the defendants, except the ler not joining) mortgaged their interest Yosemite Gold Mining Company, appeal. ( being 19/20) to secure a promissory note After the complaint was filed, the Yosemite for $1,600 executed to said Joseph Marsden, Gold Mining & Milling Company was made who, on October 23, 18.09, assigned the note a party defendant as the grantee of the Yose. and mortgage to one II. A. Blanchard. is mite Gold Mining Company. The Yosemite certain rights are now (lainied by appelGold Mining Company (hereinafter referred lants to have arisen out of this mortgage, by to as defendant company) executed its mort- reason of its antedating the mortgage in gage to one Joseph Marsden, plaintiff's as- suit, it becomes necessary to trace its hissignor, on October 25, 1899, which was, on tory. Blanchard lirought suit to foreclose on October 27, 1899, duly recorded in the office November 5, 1899, making the mortgagors of the county recorder of Tuolumne county. parties defendant, and also E. L. Emerson, The land mortgaged embraced several min- | Jacob Miller, F. F. Britton, and A. L. Emering claims, and among them a claim called son, alleging that the last four named de the “Jim Blaine Mine," also called the "Slap fendants claimed some interest in the mine. Jack Mine." Defendants other than the de- The Argalls, E. L. Emerson, and Miller, not fendant company, were alleged to have or to answering their default was duly entere. claim some interest in the premises. They The other defendants answered. Veither disa vowed any interest in any of the claims, Marsden, mortgagor of the mortgage in the except the "Slap Jack Mine," which they present suit, nor his assignee, Wemple, was a verred included the same ground as the made a party defendant to the Blanchard “Jim Blaine Mine." As to this mine they foreclosure suit, although the mortgage now averred that their title was superior and ad- .in suit was of record when the Blanchard verse to any title of the defendant company, foreclosure suit was commenced. In this the mortgagor, or of plaintiff; they also aver- latter action, decree of foreclosure was duly red that plaintiff's said mortgage was withi- entered February 23. 19900, and sale by comout efficacy as a lien upon their said mine; | missioner, H. A. IIardinge. of 19/20 interalso that a first and prior mortgage upon the est in the mine was ordered and afterwards "Slap Jack Mine" had been foreclosed and made to Peter Berg on March 31, 1900, a the property sold thereunder, and that what- certificate of sale was issued to him. Within erer title the defendant company, or any per- 12 months, certain defendants in that action, son from whom it claimed, ever had, was namely E. L. Emerson, F. F. Britton, and "lost and merged in the foreclosure of the A. L. Emerson, successor in interest of said first and prior mortgage." The court found judgment debtors, tendered to Peter Berg that a 9/20 interest in the "Slap Jack Mine" and also to Commissioner Hardinge the was incumbered by the mortgage sued upon, money necessary to redeem from the foreand decreed foreclosure thereof accordingly. closure sale, and demanded the assignment It is from this part of the judgment that de- of the certificate of purchase, but were refendants appeal. The so-called “Slap Jack fused. Thereafter, to wit, on March 27, Mine," the mortgaged premises, was located 1901, these same three defendants commenced by one Walter J. Coyle on January 1, 1896. an action to enforce redemption, claiming to An attempt was made to relocate the same own 19/20 interest in said mine as successors ground, as that embraced in the "Slap Jack of the Argalls, Griswold, and F. L. Emerson, Mine," under the name of "Jim Blaine Mine," as judgment debtors in the Blanchard fore. by one McWhirter, on January 1, 1899, but it closure action. The defendants in the rewas found by the court to have been ineffect- | demption suit answered, denying most of ual, the ground not then being open to loca- the allegations in the complaint set forth, tion by any one, and this finding is not chal- and specifically denying that plaintiffs were, lenged. By deed dated August 6, 1896, Coyle at the commencement of the suit, or ever conveyed an undivided one-fourth of this were, the owners or interested in the property in question. Defendants subsequently | scribed in the mortgage with sufficient deffiled an offer to allow said Britton, E. L. initeness; second, the title of appellants is and A. L. Emerson to redeem said mine upon superior to the mortgagor's title; third, payment of a certain stated amount. E. L. whatever interest or equity of redemption was the husband of Mrs. A. L. Emerson. the Yosemite Gold Mining Company, mortThis offer was accepted and, by consent, gagor of the mortgage sued upon, ever had in judgment for the redemption was entered in the mine in question, was foreclosed by the favor of Britton, Emerson, and Emerson proceedings had in the foreclosure of the first. and they received the certificate of sale and or Marsden mortgage, by Blanchard; fourth, on September 7, 1901, a judgment was entered there is a still further claim made by apadjudging that Britton, Emerson, and Emer- pellants: Considering that plaintiff's mortson had redeemed said mine, from said fore- gage created a lien on the Argall interest, closure sale, within the time allowed by law, equity will keep alive the Blanchard mortas successors in interest of the judgment gage as a protection to the redemptioners debtors, the Argalls, Griswold, and F. L. from the Blanchard foreclosure. Emerson, and that the judgment and decree 1. The description of the controverted has become final and has been fully satis- premises stated in the mortgage of defendant fied; that on November 6, 1899, when said company was as follows: "The Jim Blaine foreclosure action was commenced by Blanch- Mining Claim, being the same property locatard, the records of Tuolumne county did ed by R. S. McWhirter on January 1, 1899, not show that the Yosemite Gold Mining of Record in Book 10, p. 271, Quartz Claims, Company had, or claimed to have, any in- Tuolumne County Records.” Then follows terest in or to said mine, and that on that the description of several other mining day there was no conveyance of record from claims, at the close of which the mortgage the Argalls, Griswold, F. L. Emerson, or continues: “All of said mines and mining Jacob Miller to said last-named mining com- property being the same described in that pany. But the court found in the present | deed of conveyance made by Peter Berg to case, and the evidence was, that the Argalls the Yosemite Gold Mining Company on June executed and delivered to the Yosemite Gold
1, 1899, of Record in Book A of deeds, vol. Mining Company, on October 2, 1899, a con- 41, p. 521, recorded on October 3, 1899, Tuolveyance of 9/20 interest in said mine and
omne County Records.” It is urged that bethat the said deed was duly recorded Jan- cause the location of the "Jim Blaine Mine" uary 12, 1900. This is the source of the in- by McWhirter was ineffectual for any purterest of the Yosemite Gold Mining Company pose, as found by the court, and because in the mortgaged premises. The court also the deed of Peter Berg conveyed nothing, found that neither the mortgagee, Marsden, he having no interest to convey, the mortnor his assignee, Wemple, the present plain
gage failed to describe or refer to the “Slap tiff, of the mortgage made October 25, 1899, Jack Mine" and hence mortgaged no part now sought to be foreclosed, was made a
of that mine. It is not disputed that the two party to foreclose the Blanchard mortgage designations referred to the same ground; and neither of them appeared in that action, it was so alleged by defendants and it so and neither of them was a party to, or ap- appeared from the testimony of defendants peared in the action to redeem from the judg- and was so understood by all parties. We ment in the Blanchard foreclosure. The
do not think the mortgage was intended to court found that neither E. L. Emerson nor
embrace only such interest as the mortgagor F. L. Emerson had any interest in the prem- acquired through the Berg deed or through ises at the commencement of this action. It
the McWhirter location. When the mortgage appeared also that Peter Berg conveyed to de- was executed the defendant company heldl fendant, Yosemite Gold Mining Company, the the deed of the Argalls to the "Slap Jack "Jim Blaine," or "Slap Jack Mine," on June Mine" thus described. It seems to us that 1, 1899, recorded October 13, 1899.
the description used in the mortgage was inThe court found as conclusions of law : tended to identify the property mortgaged by That the undivided 9/20 interest of the "Slap reference to documents which referred to the Jack” mining claim is subject to plaintiff's same property as was referred to in the mortgage; that the claims of the Yosemite Argall deed. As the "Jim Blaine Mine" emGold Mining Company, and the Yosemite braced precisely the same ground, we think Gold Mining & Milling Company are, and there can be no mistaking the intention of each of them is, subsequent to the claim of the mortgage to include this ground. The plaintiff and his said mortgage; that the purpose of the description of property mortundivided 11/20 interest of said mine is gaged or deeded is to identify the property, owned by defendants, Mrs. A. L. Emerson, and is not to indicate the source of the title. F. F. Britton, and Jacob Miller, and is not | The property in a deed or mortgage may be subject to said mortgage.
sufficiently described by appropriate reference Appellants contend that the evidence is in- to any duly recorded document or public recsufficient to justify the decision that 9/20 ord containing the required description and interest in the "Slap Jack Mine" was sub- proof of the description is complete by the ject to the mortgage sued upon, because: introduction, in evidence of such document First, the "Slap Jack Mine" was not de l or record.
2. It is contended that the title of appel- Sears, 14 Cal. 246, 77 Pac. 905. Whatlants is superior, paramount, and adverse ever interest the junior mortgagee had in to the title mortgaged, and hence cannot be the mortgaged premises, by virtue of his litigated in this action. The point is ground- mortgage, as against the senior mortgage, ed upon the alleged fact that appellants are his right was the right of redemption, and the owners of the "Slap Jack Mine" through it could not be taken from him by forethe locator Coyle, while the mortgagor, the closure of the senior mortgage, except by defendant company, claims the “Jim Blaine making him a party to that action. Id. The Mine” through McWhirter. We do not so un- senior mortgage originally impressed a lien derstand the evidence. The McWhirter loca- on 19/20 of the property-the entire interest tion was void. Defendant company claims except Miller's. The court found that of through the Argalls, whose source of title these 19/20 the junior mortgage impressed in the Coyle location is the same as that of a lien upon 9/20 discharged from any lien of appellants. The real controversy in the case the senior mortgage, presumably because title is as to the relative rights of the parties aris- thereto vested in the junior mortgagor, deing out of the Blanchard mortgage foreclos- fendant company, by virtue of the deed from ure and the Wemple, or plaintiff's mortgage the Argalls to the defendant company, the foreclosure. The court decreed that certain deed inuring to the benefit of the mortgagee; defendants, Britton, Mrs. A. L. Emerson, and or, in other words, the deed feeding the Miller, were the owners of 11/20 of the mine mortgage. In support of the view of the in question (about which there is no con- court, it is also contended by respondent troversy); and that the remaining 9/20 in- that the turn which the foreclosure proterest therein was subject to plaintiff's mort- ceedings took in foreclosing the senior mortgage, being the interest of the Argalls which gage was such as to wipe out that mortgage, they had conveyed to the defendant company. at least as to the Argall interest, and leave
3. The vital question in the case is thus the property subject alone to plaintiff's lien. stated by appellants: That whatever inter
That whatever inter- | Indeed, unless by some means the lien of the est or equity of redemption the defendant Blanchard mortgage was lifted from the Ar company, the mortgagor, or the respondent, galls' 9/20 interest, included in the senior ever had in the "Slap Jack Mine," was fore- mortgage, the Argalls could only convey their closed and lost by the decree, sale and pro- interest subject to the Blanchard mortgage. (eedings had in the foreclosure of the The argument of respondent upon the point Blanchard, or first mortgage. The point that the Blanchard mortgage lien was dismade that the mortgage of defendant com- charged by the redemption, effected by the pany did not sufficiently describe the mine, successors of the mortgagors' interest in the has been already disposed of. The second property, rests upon the following princireason given by appellants in support of ples: That the exercise of the right of retheir contention raises the question, name- demption confers no new rights and affects ly, that whatever title the defendant com- only the interest which the redemptioner was pany had was foreclosed and lost by entitled to redeem ; when redemption is made the foreclosure of the first or Blanchard by the execution debtor, or his assigns, granmortgage. The evidence is undisputed that tees, or successors in interest, the effect is the Blanchard mortgage was prior in date merely to terminate the same and restore the and recordation to plaintiff's mortgage. But property to its original condition. 20 Am. when the Blanchard foreclosure suit was & Eng. Ency. of Law, pp. 639, 610. That commenced (November 6, 1899), the second the judgment and receipt of redemption in or plaintiff's mortgage was of record (Oc- money discharges the judgment of foreclostober 29, 1899), and defendant company, ure, sets aside all the proceedings thereunder the mortgagor, held a deed from the Ar- and places the parties in the same position galls, executed and delivered October 2, they were in before the suit was brought, 1899, a month before the Blanchard fore- except that the debt is paid. Citing Hocker closure suit was commenced; it was, how- v. Reas, 18 Cal. 650; Perkins v. Center, 35 ever, not recorded until January 12, 1900. Cal. 713; Eldridge v. Wright, 55 Cal. 531; Blanchard was charged with constructive also Stoddard V. Forbes, 13 Iowa, 296; notice of plaintiff's mortgage, but he failed Woodward v. Cowdery, 41 Vt. 496. to make either plaintiff or his assignor a We do not understand that appellants conparty to his foreclosure. Section 726 of the trovert these principles, but they claim that Code of Civil Procedure refers to persons hav- appellants having redeemed the property ing a lien on the mortgaged premises as well from the Blanchard foreclosure, as succesas a conveyance thereof. The result of this sors in interest of the judgment debtors, failure was to leave the junior mortgage and they are in equity subrogated to all the the rights of the junior mortgagee and his rights and liens of the mortgagee in that assignee unaffected. Carpentier v. Brenham, action, and as between them and all prior 40 Cal. 234; Henderson v. Grammar, 66 Cal. lien holders, equity will preserve to them 332, 5 Pac. 488; Savings Bank v. Central the lien of the prior mortgage. In Matzen Market, 132 Cal. 36, 54 Pac. 273; Hiber- V. Schaeffer, 65 Cal., at page 82, 3 Pac. 93, nia Savings Bank V. London &
London & L. Ins. the principle is approved as laid down by Co., 138 Cal. 260, 71 Pac. 334; Frates v. Mr. Pomeroy in his Equity Jurisprudence,