Marziou v. Pioche.

erty when a failure to take it exposes them to a loss of it. This law of social duty is founded upon the obligation to pay such respect to the rights of others as we pay to our own. And we think that it would be raising the standard of this obligation too high, to require every man to conform his conduct, in this regard, to the habits or acts of a particular class of men-the very prudent-instead of to the mass of them. One certain and uniform rule ought, in our judgment, to prevail in such cases, and the learned Judge below has, in the first portion of the instruction, clearly stated it. It is to require that degree of diligence and prudence which men generally-or ordinarily prudent men-use in like instances when the risk is their own; and, as every case must depend in a great degree on its own circumstances, leaving the jury to determine whether, under the particular facts, that degree of prudence was exercised. Both the degree and fact of prudence must, of course, we repeat, depend upon the particular circumstances; for what, under one state of facts would be prudence, might, under a different condition of things, be gross, or even criminal, negligence.

For the error indicated, the judgment must be reversed, and the cause remanded.

MARZIOU et al. v. PIOCHE et al.

Where a reference is had to take an account, it is within the discretion of the referees to open the case, after it has been once closed, for the purpose of receiving additional testimony. The exercise of such discretion, except in case of gross abuse, will not be reviewed on appeal.

APPEAL from the District Court of the Fourth Judicial District, County of San Francisco.

The facts of this case are reported in 8 Cal., 522. By the decision of the Supreme Court, rendered at the October Term, 1857, this case was remanded to the Court below, for the purpose of having an account taken. In the decision made upon a petition for re-hearing, at the January Term, 1858, the Court said that, "in taking the account, all the evidence contained in the transcript, so far as it goes, will be legitimate." When the case was remitted to the Court below, an order was entered by that Court, referring the case to referees, to take the account, in accordance with the opinion of this Court. The plaintiffs' counsel then obtained leave to withdraw the transcript used on appeal, from the files of this Court, to be used before the ref

Marziou v. Pioche.

erees. The transcript was accordingly withdrawn, and the evidence contained in it introduced before the referees. After the case was closed, upon application of the plaintiffs' counsel, the referees allowed the case to be opened, for the purpose of taking additional testimony. Notice of taking such additional testimony was given to the counsel of the defendants.

The referees rendered their report, which was confirmed. The material exceptions to the report were based upon the admission of the transcript, and the re-opening of the case after it was once closed. The exceptions were overruled, and the defendants appealed.

Felton, Pringle, and Parsons, for Appellants.

Gregory Yale for Respondents.

FIELD, J., delivered the opinion of the Court-TERRY, C. J., and BALDWIN, J., concurring.

By the decision rendered at the October Term, 1857, this case was remanded to the Court below, for the purpose of having an account taken, so as to ascertain the amount for which plaintiffs were entitled to judgment; and, by the decision made upon the petition for re-hearing, at the January Term, it was held that, in taking the account, the evidence contained in the transcript could be used. This ruling answers the objection of the appellants to the admission, before the referees, of the transcript. The case was sent back, not for a new trial on its merits, but for the single purpose of taking the account, in accordance with the views expressed in the opinion of this Court; and, for that purpose, it was entirely unnecessary to subject the parties to the labor of retaking anew their entire testimony. It was the intention of this Court to give to both parties the benefit of the evidence already reduced to writing, and, at the same time, to allow them, in making up the account, to introduce adtional evidence, if they so desired.

It was within the discretion of the referees to open the case, after it had been once closed, for the purpose of receiving additional testimony. The exercise of such discretion, except in case of gross abuse, will not be reviewed on appeal.

Judgment affirmed.

Whitney v. Higgins.

WHITNEY v. HIGGINS.

A decree for the sale of premises in a suit to enforce a mechanic's lien, has the same and no greater effect upon the rights of purchasers and incumbrancers, prior to the commencement of the suit, than a similar decree would have upon the foreclosure of a mortgage. If such purchasers or incumbrancers are not made parties, they are not bound by the decree or the proceedings thereunder.

All persons interested in the premises, prior to the suit brought to foreclose a mortgage or to enforce a mechanic's lien, whether purchasers, heirs, devisees, remainder-men, reversioners, or incumbrancers, must be made parties, otherwise their rights will not be affected.

Persons who acquire interests by conveyance or incumbrance after suit brought, need not be made parties.

The right to redeem, under the statute, from a sale on execution, exists in some instances where there is no equity, and in other instances in connection with the equitable right. Parties to the suit in which the judgment is rendered, under which the sale is made, are restricted to the six months given by statute. Parties acquiring interests, pending suits to enforce previously existing liens, or after judgment docketed or sale made, have no equity, and are confined to the rights given by the statute; but parties obtaining interests, subsequent to the plaintiff, and before suit brought, who are not made parties in such suit, possess the equitable and the statutory right. They may redeem, under the statute, or they may file their bill in equity. Where a mechanic's lien attached on certain premises January 18th, 1856, and a mortgage was placed on the same premises February 21st, 1856, and a suit was brought, subsequent to the execution and record of the mortgage, to enforce the mechanic's lien, in which suit the mortgagees were not made parties, and under the decree rendered in such suit, a sale was made, and after the expiration of six months, no redemption being had, a deed was executed to the assignee of the sheriff's certificate: Held, that the right of the mortgagees to redeem the premises, by paying off the incumbrance of the mechanic's lien, was not affected by the decree and the proceedings thereunder; and that the purchaser of the premises upon a decree of foreclosure of the mortgage, having received his deed upon such purchase, was entitled to the same right to redeem.

The liens, which, by the Act of April 19th, 1856, entitled "An Act for securing Liens to Mechanics and Others," are required to be exhibited and proved, upon publication of notice in some newspaper of the county, or be deemed waived, are liens arising under that act, and do not apply to other liens.

APPEAL from the District Court of the Eleventh Judicial District, County of Placer.

Bill to redeem. The facts of the case are as follows: On the 21st of February, 1856, one George H. Stephens was indebted to the plaintiff, George O. Whitney, and his partner George Whitney, in the sum of $1668, for which Stephens gave to them his three promissory notes, each for $556, payable in two, four, and six months; and, to secure the payment of said notes, at the same time executed to them a mortgage upon certain premises owned by him, situated in Placer county, which mortgage was on the same day duly recorded in the office of the recorder of the county. The notes not being paid, the mortgagees brought suit and foreclosed the mortgage, and obtained the usual decree for the sale of the mortgaged premises, under which the premises were sold December 6th, 1856, and at such sale the plaintiff became the pur

Whitney v. Higgins.

chaser, and received the sheriff's certificate of sale; and June 27th, 1857, no redemption having been made, obtained the sheriff's deed of the premises.

On the eighteenth day of January, 1856, a mechanic's lien, for the sum of sixty-five dollars, was placed by one Avery upon the same premises; and after the above-named mortgage was executed and recorded, the said Avery instituted suit to enforce his mechanic's lien, and obtained the usual decree for the sale of the premises, under which the premises were sold June 15, 1857, and at such sale he became the purchaser for $141, and received a certificate of sale from the sheriff. On the sixteenth of September, 1857, said Avery assigned the certificate of sale, and all his interest therein, and right to a deed thereunder, to the defendant; and December 30, 1857, no redemption having been made, the sheriff executed a deed of the premises to the defendant. In the suit to enforce the mechanic's lien, the mortgagees were not made parties, nor did they appear in the action. After the defendant had received his deed from the sheriff, the plaintiff tendered to him (the defendant) the amount of his purchasemoney, with interest, for the purpose of redeeming the premises from the sale, and the incumbrance of the mechanic's lien. The defendant refused to accept the money tendered, and denied the plaintiff's right to redeem. The plaintiff then filed his bill to redeem. To the bill the defendant demurred-the demurrer was sustained, and from the judgment rendered thereon, the plaintiff appealed.

Hale, Tuttle, and Hillyer, for Appellant.
No brief on file.

Crocker and Myers for Respondent.

I. The Mechanics' Lien Law provides that in a suit to enforce a mechanic's lien, the Court shall cause a notice to be published, "notifying all persons holding or claiming liens on said premises to be and appear in said Court on a day to be specified therein, and to exhibit then and there the proof of said liens. On the day appointed, the Court shall proceed to hear and determine the said claims in a summary way, or may refer the same to a referee, to ascertain and report upon said liens, and the amount justly due thereon; and all liens not so exhibited aud proved, shall be deemed to be waived in favor of those which are so exhibited." Wood's Digest, § 7, pp. 538, 539.

The section then proceeds, and authorizes the Court to " cause said premises to be sold in satisfaction of said liens and the costs of suit," and if the proceeds of such sale shall not be sufficient to satisfy the whole of such liens, then to apportion the same.

This statute is clear and specific, and it applies to "all persons holding or claiming liens on the premises." It is not confined to

Whitney v. Higgins.

all persons holding or claiming liens under the Mechanics' Lien Law, but all liens generally. And the object of the statute is clear. It is that all liens by mechanics, by mortgage, judgment, or otherwise, shall be exhibited in the case, and the rights of all finally determined in one suit, and thus prevent litigation, and give a clear title to the purchaser at the sale under the decree of the Court-an important matter in sales of real estate, and a result which a Court will always accomplish, if in its power.

The statute clearly confers the power upon the Court to finally adjudicate all liens, without regard to their character, and sell the property for the satisfaction of the liens, and divide the proceeds among the parties properly entitled to them.

And to make the title of the purchaser still more secure, it declares that "all liens not so exhibited and proved, shall be deemed waived," thus effectually putting an end to litigation respecting the property.

Like insolvent cases, the object of the Lien Law is to throw the property, or its proceeds, into one fund, for the benefit of all holders. Whitney might have appeared in the action to enforce the lien, exhibited and proved his lien, under this statute, and that, too, under the published notice, without any special application to the Court, and received his proportion of the proceeds of the property? If he could, he was a party to the action, in a legal sense, though not specifically named. If he neglected or refused to exercise this right, he waived his lien.

In the Insolvent Law, the term "creditors" is used, and it was held to include all creditors, whether named or not. Here, the terms are "all persons holding or claiming liens." A mortgage is a lien, and is, therefore, clearly included in the terms, and, as we have shown, within the spirit of the act.

If our views of this statute are correct, then it follows, that as against the mechanic's lien and the sale under it, Whitney's lien, under his mortgage, was waived. It was as though it had never existed, and, of course, he had no right of redemption under it.

II. But conceding that this view is not correct, then we say Whitney is confined to the statutory redemption under the law regulating sales on execution.

This law provides that property sold subject to redemption, may be redeemed by " a creditor having a lien by judgment or mortgage on the property sold, or on some share or part thereof, subsequent to that on which the property was sold." Practice Act, § 230.

This law gives subsequent lien-holders, by judgment or mortgage, which includes the plaintiff, a right to redeem the sale within six months, and we contend that if he does not redeem within that time, his rights-his lien-are gone.

Without this statute of redemption, a sale under an older