No. 2,519.

#### E. R. CARPENTIER, (Administrator, etc., of Catherine Hayes Bushnell deceased) Appellant, *v.*C. J. BRENHAM *et al.*Respondents.

Mortgage. — Legal Title. — It is definitely settled in tliis State that a mortgage does not convey tlie title to the mortgaged premises, hut only creates a lien thereon for the security of the mortgage debt.

Idem. — Seniob and Junior Mortgagees. — Eppect *of*Foreclosure. — Although the foreclosure of a first mortgage, to which the junior mortgagee was not a party, does not affect the rights of the latter, yet such a foreclosure is valid between the holder of the first mortgage and the mortgagor; and the purchaser at the foreclosure sale acquires the legal estate of the mortgagor subject only to the lien of the junior mortgagee.

Idem. — Eoreoloscbe.—Paeties.—■ Subsequent incumbrancers are not necessary, though proper parties, to an action to foreclose a mortgage.

Idem. — Equity.—Legal Title and Mortgagees’ Interest. — Equity will keep the legal title and the mortgagee’s interest, although held by the same person, separate, whenever necessary for the full protection of such person’s just rights.

Idem. — Eibst Mortgagee. — A first mortgagee who obtains a valid decree of foreclosure, and beomes the purchaser at the foreclosure sale, acquires the legal title freed of the first mortgage as against the mortgagor and all persons brought into Court, while as against a junior mortgagee, who was *222not a party to the foreclosure suit, he holds the legal title subject to both mortgages, and this, although he still retains his rights as first mortgagee.

Idem. — Subsequent Mobtgagee. — A subsequent mortgagee has no estate in the land itself nor any lien upon the land, except subject to the prior lien; that is, he has a right to be paid out of the excess; which is, in effect, a right to redeem, and incidentally — if made a party to a foreclosure suit — a right to defend by pleading the Statute of Limitations, or the invalidity in whole or in x:>art of the plaintiff’s claim, or that it is paid.

Idem. — Whenever a subsequent mortgagee files a bill to redeem the former mortgage, or to redeem the former and to foreclose his own, he may allege and show that the claim of the prior mortgagee has' been exaggerated, or any other kindred fact which will increase the fund.

Idem. — No decree in a proceeding to which he was not made a party can deprive a mortgagee of the right to relief, by showing that an apparent prior incumbrance is fraudulent or not supported by any consideration.

Idem. — A junior mortgagee possesses the right to extinguish the senior in-cumbrance; and, by whatever mode he may elect to exercise this right, it oxserates as a satisfaction of the claim of the prior mortgagee, and a release from his lien.

Idem. — Although a subsequent mortgagee may bring his action against the mortgagor without making the prior incumbrancer a party, no decree in the suit can affect the prior incumbrancer, whose rights are paramount.

Idem. — Bight to Redeem. — 1The right of the subsequent mortgagee as against the purchaser at the foreclosure sale under the first mortgage, is a right to redeem.

Idem. — A suit of foreclosure as against a younger mortgagee is a suit to cut off the right of redemption; when therefore, the younger mortgagee is not made a party, his right to redeem is unaffected by a decree of foreclosure and a sale under it.

Idem. — Pubchaseb at Eobeclosube Sale. — Subbogation.—A purchaser at foreclosure sale who voluntarily discharges a junior mortgagee, is not, as a matter of law, thereby subrogated to all the rights which the junior mortgagee ever had against the mortgagor; hut — if entitled to subrogation at all — only to such right as the junior mortgagee has at the time of the payment of his mortgage debt.

Appeal from the District Court of the Twelfth District, City and County of San Francisco.

The facts are stated in the opinion.

*W-*N. *Patterson*and *Glarlce & Oarpentier,*for Appellant.

*Mrst*— In all cases where the" ownership of the estate mortgaged has passed from the mortgagor, by operation of *223law, tbe rule is tbat tbe mortgaged premises are tbe primary fund for tbe payment of tbe debt.

By a sale of tbe equity of redemption upon execution, tbe mortgaged premises become in equity tbe primary fund for tbe payment of tbe mortgage debt, and tbe personal liability of tbe mortgagor to pay tbe debt becomes separated from tbe ownership of tbe land, and from tbe remedy upon tbe mortgage against tbe land. And a judgment in favor of tbe mortgagor, in a suit brought upon the bond after such sale, could not be pleaded by tbe purchaser of tbe mortgaged premises by way of estoppel in bar of a suit to foreclose tbe mortgage. *(Heiier*v. *Pruvn,*7 Baige, 465; K'cev. *An-nin,*2 Johns. C. B. 125.)

Tbe agreement under consideration does not in terms attempt to release tbe debt, or to release Brenham from personal liability. It only agrees and undertakes, that after exhausting tbe remedy on tbe mortgage by a sale of tbe mortgaged premises, Brenbam’s other property shall not be subjected to tbe t payment of any deficiency. Somewhat similar instruments were held not to operate as a release of tbe debt in *Miller*v. *Fenton,*(11 Paige, 18); *Bruen*v. *Mar-quand,*(17 Jobn, 58); *JELubbell*v. *Carpenter,*(1 Selden, 171); *Christy*v. *Dana,*(34 .Cal. *548); Stewart*v. *Fden,*(2 Caines B. 121.)

A release of only tbe personal liability of tbe mortgagor for tbe debt, leaves tbe mortgage a valid claim against tbe lands in tbe bands of one to whom tbe land has been conveyed, subject to tbe payment of tbe mortgage. *(Chamberlain v. Dempsey,*13 Abb. P. B. 61; *Tripp*v. *Vincent,*3 Barb. 0. B. 614-5; *Newton*v. *Scott,*9 Mees, and Weis. 432; 2 B. and Bing. 38; 4 M. and S. 423 ; 3 B. and A. 175; 18 Pick. 325; 7 Cow. 662.)

A release of tbe debt releases tbe mortgage; but tbe invocation of this- rule would not prevent tbe mortgagee, when be takes bis decree, from waiving tbe 'personal liability of tbe mortgagor, or from contracting to do so before decree.

*224When Brenbam mortgaged to Moss be still retained tbe fee; when be mortgaged to Hayes be still retained tbe fee, subject to tbe two mortgages; when tbe Moss mortgage was foreclosed, and tbe Sheriff's deed was executed, be was divested of tbe fee, but tbe fee still remained subject to tbe payment of tbe Hayes mortgage; and tbe fee and not tbe personal liability of tbe mortgagor became tbe primary fund for tbe payment of tbe debt.

*Second*— When Brenbam mortgaged to Hayes, sbe acquired, among other rights, that of foreclosing her mortgage. *(Peabody*v. *Morse,*47 Barb. 91; *Walshs. The Rutgers Fire Ins. Co.*IB Abb. P. B. 33; *Vanderkemp*v. *Skelton,*11 Paige, 28; *Norton*v. *Warner,*3 Edw. C. B. 106; Hilliard on Mortgages, 300; *Gullmanv. Erwin,*4 Ala. (N. S.) 452; *Alexander it. Greenwood,*24 Cal. 511-12; *Lordv. Morris,*18 Id. 484.)

As sbe was not made a party to tbe foreclosure of tbe first (Moss) mortgage, no right of hers was affected thereby. *(Haines*v. *Beach,*3 Johns. C. B. 459; *Montgomery*v. *Tutt,*11 Cal. 315; *Goodenow*v. *Ewer,*16 Id. 469; *Alexander*v. *Greemoood,*24 Id. 512; *Boggs*v. *Hargrave,*16 Id. 563-4-5; *Skinner*v. *Buck,*29 Id. 253; *Bludworth*v. *Lake,*33 Id. 264-5; *Garpentier*v. *Williamson,*25 Id. 161; *Besser*v. *Shultz,*lately decided in tbe Supreme Court of Oregon, not reported.) All question as to tbe right of tbe plaintiff to maintain tbe action in tbe present form, is definitely determined by tbe language of Section 246 of our Practice Act. To bold that a foreclosure as against tbe mortgagor defeats tbe rights of tbe second mortgagee to foreclose, is to resort to tbe exploded doctrine that a mortgage was a conveyance of tbe fee, subject to be defeated before condition broten by payment, and that a second mortgagee only obtains tbe right to pay tbe first mortgage, because that was all tbe mortgagor could convey, as by tbe first mortgage tbe fee bad already been conveyed *(Goodenow*v. *Ewer,*16 Cal. 461; and *Fogarty*v. *Sawyer,*Ul*Id. 589); and would be to utterly ignore tbe rule in this State and in modern times, that a mortgage only creates a lien which must be enforced by *225foreclosure, and which permits the second mortgagee to avail himself of the Statute of Limitations as against the prior mortgage. *'■(Lord'v. Morris,*18 Cal. 482; *McCarthy -r. White,*21 Id. 501; *Lent*v. *Shear,*26 Id. 365; *Buclcout*v. *Sioifb,*27 Id. 434-6; *Bia*v. *McHenry,*7 Id. 89; *Alexander*v. *Greenwood,*24 Id. 505; *Goddefroy*v. *Caldwell,*2 Id. 489; *Fogarty*v. *Sawyer,*17 Id. 589; *Goodenoio*v. *Fiver,*16 Id. 609; Duttonv. *Warschauer,*21 Id.-609; *McMillans. Richards,*9 Id. 365). And after condition broken no estate passed to the mortgagee. *(Johnson*v. *Sherman,*15 Cal. 287; *Naglee*v. *Macy,*9 Id. 426; *Boggs*v. *Hargrave,*16 Id. 560).

When the action of *Moss*v. *Brenham*was commenced, Brenham had the fee subject to the second mortgage. It was the estate thus subject, that was operated upon by the decree in that case, and passed by the Sheriffs’ deed to Moss, and Moss and the now defendants as his successors acquired the right to retain the fee on paying the Hayes mortgage. *(Fogal*v. *Pirro,*17 Abb. P. B. 130-1.) They did not acquire any right to compel the plaintiff to redeem, because no part of the Moss debt was transferred to them. The lien under the decree was satisfied by the sale, and £hs purchase of the entire property by Moss was a satisfaction and merger of his mortgage debt to the extent of his bid; and the subsequent release by Moss satisfied the residue. *(Starr*v. *Filis,*6 Johns. C. R. 393; *James*v. *Johnson,*Id. 417; *Burn'ett*v. *Denniston,*5 Id. 35; *Mills*v. *Oomstoch,*Id. 214.) The vendees of Moss, the defendants in this action, acquired by their deeds only such interest and rights in the fee as Moss possessed at the time of his vendition. *(Haines*v. *Beach,*3 Johns. C. B. 459.) They have no right now to complain because their lands are-subject to the Hayes mortgage, for they purchased of Moss with full record knowledge of all the facts.

All the title that Moss had was such as he acquired by his purchase under the foreclosure proceedings, to which Hayes, the junior mortgagee, was not a party, and he therefore took, by the Sheriffs’ deed, the legal title as it existed in Brenham, discharged of the Moss mortgage, but subject *226to the lieu of tbe Hayes mortgage. Tbat title so acquired was good as agaiust tbe parties to tbat suit, but it can not be set up against tbe subsisting equities of an incumbran-cer wbo was not a party. *(Haines*v. *Beach, supra.')*Tbe vice of tbe defendants’ argument and position, consists in being unable to remember tbat, tbe common law rule of mortgages, as it existed when tbe ancient forms and decrees collated by Seaton was adopted, bas never prevailed in tbis State. (Seaton’s Forms and Decrees, 155-13-14.) Tben a mortgage was a conveyance; it vested tbe *title and possession*in tbe mortgagee, subject to be defeated by payment of tbe debt on tbe day fixed, and if not paid on tbat day, tbe estate was absolutely tbat of tbe mortgagee, as of tbe date of tbe mortgage. (Powell on M. 4 a.) It was considered dead as to tbe mortgagor. (Powell on M. 107 b.) Of course it followed tbat tbe mortgagor, before or after condition broken, bad no estate wbicb be could convey by a second mortgage; and before be could bave any estate *at*law, be bad to bave a re-conveyance from tbe mortgagee before tbe latter was divested of tbe legal estate, even tbougb tbe debt liad been paid before condition broken, in wbicb case *equity*regarded tbe mortgagee as bolding tbe *legal estate*in trust for tbe mortgagor. (1 Salkeld, 158.) Later in tbe bistory of jurisprudence, equity beld tbat tbe legal estate was in tbe mortgagee, tbe mortgagor bad a right to redeem witbin a reasonable time after *condition broken,*and tbis was called an *“Equity of*Redemption,” wbicb may be defined to be tbe right to pay tbe debt, and thereupon to bave a re-conveyance. But still later, and especially in California, tbe rule became settled, tbat a mortgagor created *only a lien*upon tbe estate, and tbat tbe legal title 'remained in tbe mortgagor, wbo could *not be divested of his estate*except by foreclosure; and if tbe mortgagee suffered four years to elapse after bis debt became due, without bringing bis action to foreclose, tbe estate by operation of tbe Statute of Limitations became relieved from tbe lien of tbe mortgage. So it follows, tbat having tbe *legal title,*tbe mortgagor could create successive liens by way of mort*227gage thereon, and the second mortgagee has the right to' insist that the first mortgage is barred by the Statute of Limitations, has been paid, &c.; that is, he could plead and insist upon any defence which the mortgagor could be allowed to make. Then, having these rights, the second mortgagee, not being a party to the action to foreclose the first mortgage, they all remain to him; and, notwithstanding a judgment of foreclosure and sale under the first mortgage, the right still remains in the second mortgagee to contest the amount due, or to plead the Statute of Limitations to the first mortgage. The judgment of foreclosure is not only not binding on the second mortgagee, but is not even admissible in evidence against him, because he is not a party to it and does not claim under a party thereto, his rights having *accrued*prior to the commencement of the action; and the mortgagor and first mortgagee could do no act nor make any admission *to Ms 'prejudice,*

Let us suppose, to illustrate, that the Hayes mortgage was executed and recorded, Brenham, who then held the legal title subject to the Moss and Hayes mortgage, had conveyed to J. Mora Moss, who was also the owner of the Moss mortgage; then Moss would have been the owner of the legal estate, subject *only*to the lien of the Hayes mortgage, which would have given him the right to pay off the Hayes debt, and also the right to plead the Statute of Limitations against the enforcement of the Hayes debt. Now' we submit that a Sheriffs’ sale and deed founded upon the first mortgage, as against the mortgagor, no more divests the latter of his legal estate, than his voluntary conveyance would, and still leaves the estate subject to the Hayes mortgage; for the first mortgage and the legal estate had become merged. Brenham no longer retained the right to pay the Hayes debt, and be restored to his estate as it existed at the date of the Hayes mortgage. Moss had no right to claim that Hayes should pay his debt, because the extinguished it by his bid, and by the release put in evidence. Again, by redeeming, we should have to pay whom ? Not Moss, because he has parted, by his con*228veyances, witb wbat be acquired by tbe Sheriffs deed. Not the other defendants, (his grantees), because Moss did not assign to them his debt, or any portion or proportion of it. They bought the property *cum onere,*but not the claim or lien with which Moss had paid for it. Nor could the Court ascertain in what proportions the “redemption money” should be apportioned among the defendants.

The Moss mortgage was also a lien upon other property in San Francisco, though the amount realized from the San Francisco property is not stated. If a redemption were ordered, what should be paid, and to whom? . It is submitted that the defendants would be chargeable with the rental value of the property during their possession, while the amount to be paid on redemption would be at most, in this case, only the bid at the Sheriff’s sale with statutory interest, deducting the rents. *(Moore*v. *Cable,*1 Johns. C. B. 385). And the learned Judge who granted the new trial, seems to be of opinion that there should not be a *technical redemption-,*that this action is well brought in form, but that the first proceeds of the sale to be made, should be paid to the defendants, though to what extent he does not clearly indicate.

*John W. Dwinelle, W. H Glascock, Williams & Thornton,*and *H. P. Irving,*for Bespondents.

*First*— The authorities fully sustain the proposition that the covenant to discharge Brenham from personal liability extinguished the debt as a debt. *(Bobinson*v. *Levett,*7 N. H. 73; *Clark*v. *Bush,*3 Cowen, 152; *Clayton*v. *Kynaston,*2 Salk. 573; Bao. Abr. Belease A. 2; *Hatch*v. *White,*.2 Gall., 155; *Jackson*v. *Stackhouse,*1 Cowen, 122; Pow. on Mortg. 199; *Coyler*v. *Coyler,*2 Johns, 186; 8 Johns, 54; 4 Wendell, 612; *Chastian*v. *Sinanet,*21 New York, Green-leaf’s Evidence, Sec. 186; *People*v. *Robles,*34 Cal. 591.)

If that debt has been extinguished by a release, then, clearly, the plaintiff has no right to subject the lands of the defendants to the payment of that which was a debt, but which, by the terms of the covenant, lost its character as a debt. If the stipulation that the lands should con-*229tirme liable for tbe mortgage debt bad been assented to by tbe defendants, if they bad been parties to tbe arrangement, then they might have been bound thereby. But tbe defendants are not parties to tbe arrangement, and are, therefore, entitled to avail themselves of tbe fact that tbe debt has been released or paid. But let us suppose tbe plaintiffs are liable, in respect to tbe lands, for tbe claim. "We insist they would be clearly entitled, upon tbe payment of tbe debt, to an assignment of tbe securities. Now, in this ease, tbe plaintiff has by bis own act destroyed tbe security.

If these defendants are compelled to pay Brenbam’s debt, they are entitled to an assignment of Brenbam’s note. Tbe obligation of that note has been destroyed by tbe plaintiff. He is, therefore, not in a position to require that tbe defendants should pay tbe debt in order that they might retain tbe lands which they have purchased for a fair consideration, which has been paid to Brenbam, or what is tbe same thing, to tbe discharge of bis debt to Moss,

*Second*— Under tbe facts of this case, a complaint for a mere foreclosure of tbe second mortgage would not lie. Tbe plaintiff’s remedy was, primarily, a bill to redeem from tbe first mortgage; that is, on tbe footing of having tbe second mortgage, to bring all bolding under tbe first mortgage into Court, ask to have tbe mortgage lands sold, tbe first mortgage debt paid in full, and himself paid out of tbe balance of tbe proceeds, if any. We use tbe terms “ equity of redemption,” and “bill to redeem”, for convenience, because Courts and lawyers continue to use them and will probably always do so. By “ equity of redemption” we mean, unless otherwise defined, tbe right to foreclose; and by “bill to redeem,” tbe right of a subsequent incum-brancer, as above defined.

According to tbe principles of tbe common law, under which a mortgage constitutes an estate in tbe land, this proposition will not be denied. Tbe mortgagor has no other right than to redeem, and, of consequence, can pass no greater right to a subsequent mortgagee. This tbe counsel *230for plaintiff do not deny, but speak of it as-an exploded doctrine, and without application under our present system.

When Brenkam and Saunders executed tbeir mortgage to Moss, they gave bim a lien, with tbe right in case of nonpayment, to acquire the legal title by foreclosure and sale, and the pretended second mortgage to Catherine Hayes was subject to this right of Moss. When the defendants then acquired the fee, under foreclosure of the first mortgage and sale, they stood precisely as the mortgagee stood at common law after default; that is, they had the legal title, subject to the right of a subsequent mortgagee to redeem; in each case the legal title is held under a prior mortgage, and therefore the same principles of law are equally applicable. In both cases, the only right of the subsequent mortgagee is to redeem from the first mortgage.

This is all Catherine Hayes could have done if she had been made a party to the foreclosure of the first mortgage.

In fact, the position of Catherine Hayes, under the pretended second mortgage, would be precisely the same in England as here. Even in England, her second mortgage would be only an equitable security, just as it would be here, for the legal estate would have already passed under the English law to Moss by'the first mortgage, and so no legal estate would pass to her under the second mortgage, until she had redeemed from the first mortgage, and then not *proprio vigore*of the second mortgage, but only by virtue of the decree made in her favor on her bill to redeem.

The following authorities are cited to sustain, our position: *(Whitmore*v. (Roberts, 10 How. Pr. B>. 54; *Watson*v. *Spear,*20 Wend. 262; *Gager. Brewster,*31 N. Y. 220; *Peabody*v. *Roberts,*47 Barb.. 91; *Whitney*v. *Higgins,*10 Cal. 547; *Montgomery*v. *Tuttle,*11 Cal. 307; *Kirhham*v. *Dupont,*14 Cal. 564; *Gamble*v. *Voll,*15 Cal. 510; *Goodman*v. *Ewer,*16 Cal. 461; *Boggs*v. *Hargrave,*16 Cal. 559; *San Francisco*v. *Lawton,*18 Cal. 473; *Alexander*v. *Greenwood,*24 Cal. 509; *Brainerd*v. *Cooper,*10 N. Y. (6 Seld.) 356.)

*231The whole of tbe Moss debt, passed to tbe purchasers under the first foreclosure, no matter whether the whole amount of it was bid or not.

There was no-merger of the lien with the realty, for there being a manifest interest to keep them separate, the law keeps them apart.

The plaintiff had the right to foreclose her mortgage, but could do so only by bringing the holders under the first mortgage into Court, and also all other previous incum-brances, and asking to have the land sold and their claims first satisfied out of the proceeds, and the surplus, if any, to go to satisfy her mortgage.

The amount of these claims was the full amount of the first mortgage debt, with interest to the date of the final payment out of the proceeds of sale.

ÜYhere all the incumbrancers, having liens on the equity of redemption, are not made parties to the foreclosure suit, it is presumed that the lien of the first mortgage is kept alive for the benefit of the purchaser, and assigned to him. No redemption can be made, therefore, without paying the whole amount of the debt. *(Vanderltemp*v. *Shelton,*11 Paige, 28, 35; *San Francisco*v. *Lawton,*18 Cal. 473; *Pea-tody*v. *Boberts,*47 Barb. 91; *Gage*v. *Brewster,*31 N. Y. 220; *Kirhham*v. *Dupont,*14 Cal. 564; *Gamble*v. *Vail,*15 Id. 510.) Also, the authorities cited by appellant on this point. Consequently, Moss had no lien to release, as it had passed to the purchasers under him. Consequently, also, the plaintiff has mistaken his form of action. Instead of bringing the defendants into Court, and asking to have them paid off, as he ought to have done, he has not merely ignored, but denied and disputed, their rights to the last moment. Even if he had stated their rights under the first mortgage, his complaint would have been demurrable as barred by the Statute of Limitations. The case of *Beser*v. *Shultz,*Supreme Court of Oregon, cited by plaintiff, is so decidedly against the plaintiff that we call the attention of the Court to it.

The plaintiff asks: “Again, by redeeming, we should *232have to pay whom?” Why, of course, Moss, and those who purchasing the lands from him have become the assignees of the first mortgage debt, in proportion to the interests which they have respectively purchased in the lands.

The plaintiff submits, that the Moss mortgage was also a lien upon other property in San' Francisco, and asks if a redemption were ordered, what should be paid, and to whom; and makes other suggestions concerning rents and profits. These questions would have been pertinent and proper if the plaintiff had framed his complaint so as to raise them; but, as they can never be raised in this action, they present only legal conundrums, which neither Court nor counsel are called upon to answer. "We will submit, however, that Courts have decided questions more complicated than those suggested by the plaintiff. *(Kirlcham*v. *Dwpont,*14 Cal. 564; 19 Pick. 238; *Vanderlcemp*v. *Shelton,*11 Paige, 28.)

Section 246 of the Practice Act has not the effect attributed to it by the plaintiff’s counsel. It was enacted to prevent a common practice in some States of suing the bond or note accompanying the mortgage, and exhausting the personal security of the maker before resorting to the land. It merely requires that suit shall be brought first on the mortgage, the land exhausted, and then a personal judgment rendered for the deficiency, if any.

Crockett, J'.,

delivered the opinion of the Court, Temple, J., and Rhodes, C. J., concurring.

This is an action brought by the plaintiff as special administrator of the estate of Catherine Hayes Bushnell, deceased, to foreclose a mortgage made by the defendant Brenham in the year 1855 to the said Catherine Hayes in her lifetime. A judgment of foreclosure having been rendered in the Court below, the defendants moved for a new trial, which was granted, and the plaintiff has appealed from the order granting, the new trial.

It becomes necessary, therefore, to inquire into the merits of the action, inasmuch as the order granting the new *233trial will not be reversed, if on tbe whole record it appears to have been correct. It appears from tbe record, tbat pri- or to tbe execution of tbe mortgage to Catherine Hayes, Sanders *&*Brenham executed, in due form, to one Samuel Moss, Jr., a mortgage upon tbe same premises, to secure a debt of $50,000, which mortgage was duly recorded and afterward assigned to J. Mora Moss, who afterward commenced an action to foreclose tbe same, but omitted to make tbe said Catherine Hayes (tbe bolder of tbe subsequent mortgage) a party thereto. A decree of foreclosure having-been duly rendered in said action, tbe mortgaged premises were sold thereunder to tbe said J. Mora Moss, and the purchase money therefor was credited on said judgment of foreclosure, leaving a considerable portion of said judgment still unpaid. There having been no redemption from said sale, the said Moss in due time, obtained the Sheriffs’ deed for said premises, and the defendants, other than the defendant Brenham, deraign title to separate and several portions of said premises under the said Moss. The present action was brought within less than four years from the time when the demand to Catherine Hayes from Sanders & Brenham became due and payable, but more than four years had elapsed after the judgment of foreclosure in the case of Moss before the commencement of this action. It further appears in the case, that the said Catherine Hayes died, leaving a last will and testament in which she appointed one Power her executor and residuary legatee, and that said will has been duly admitted to probate in this State, and the plaintiff has been duly appointed special administrator of said estate. It also appears that after the purchase by said Moss at his foreclosure sale of the said mortgaged premises, and after obtaining the Sheriffs’ deed therefor, he released the said Brenham from the balance remaining unpaid of his said mortgage debt. If the mortgage to Moss had not been foreclosed, and had remained a valid, subsisting and unsatisfied lien upon the mortgaged premises, it would, of course, have been entitled to priority over the junior mortgage, so long as it was not barred by the Statute of Limitations,

*234The most important question in tbe case is, what change was effected in the status of the two mortgages by the foreclosure of the first, and the sale of the mortgaged premises, and the release of the remainder of the mortgage debt, as hereinbefore stated. In discussing this question it may be assumed as definitely settled in this State: first, that a mortgage does not convey the title to the mortgaged premises, but only creates a lien thereon for the security of the mortgaged debt; second, that a foreclosure of the first mortgage, to which the junior mortgagee was not a party, does not affect the rights of the latter. Nevertheless, such a foreclosure is valid as between the holder of the first mortgage and the mortgagor; and the purchaser at the foreclosure sale acquires the legal estate of the mortgagor, subject only to the lien of the junior mortgagee.

On behalf of the plaintiff it is insisted, that if the debt secured by the first mortgage is either wholly satisfied by the sale, or if it is only partially satisfied, and the remainder of the mortgage debt is released, as in this case, the effect of the transaction will be wholly to extinguish the lien of the first mortgage and to substitute the purchaser only to the rights of the mortgagor, leaving the junior mortgagee at liberty to assert and enforce the lien of his mortgage in the same manner as if the first mortgage had been absolutely released by the mortgagee, and the purchaser had acquired by a direct conveyance the legal title of the mortgagor. In other words, it is claimed that the effect of the proceeding is wholly to extinguish the lien of the first mortgage, and that thereafter the junior mortgagee may proceed to foreclose his mortgage by a simple foreclosure suit, in the same manner as if the first mortgage had never existed. Ón the other hand, it is insisted for the defendants that whilst the rights of the junior mortgagee are not prejudiced by the foreclosure of the first mortgage, the purchaser at the foreclosure sale succeeds not only to the legal estate of the mortgagor, but also to the rights of the first mortgagee as against the junior mortgage; and that for the purpose of protecting the purchaser against the lien of the second mortgage *235except subject to tbe lien of tbe first, a Court of Equity will treat tbe debt secured by tbe first mortgage as still subsisting and unsatisfied. In discussing tbis point, tbe District Judge, in granting tbe motion for a new trial, says: “The point seems to be that tbe plaintiff should not be compelled to redeem tbe first mortgage, because it has become merged in tbe legal title by a proceeding which tbe plaintiff disavows and bolds for nought.

“But, in tbe first place, tbe foreclosure in favor of Moss is not void, and, in tbe second place, Moss, tbe purchaser at tbe foreclosure sale, did not, as against tbe plaintiff, merge bis equitable rights as first incumbrancer in tbe legal title. Tbe Moss decree is not void. It is not absolutely essential to make subsequent incumbrancers parties to a foreclosure suit. If not so made they are not bound by tbe decree, but they are not necessary parties as between tbe mortgagor and tbe mortgagee, and in many cases where tbe value of tbe property is less than tbe mortgage, it may be unimportant to tbe mortgagee to make them parties, and it would be a great hardship to compel him to make them so. *(Montgomery*v. *Tutt,*11 Cal. 307.) Subsequent in-cumbrancers are not necessary, though proper parties, to an action to foreclose a mortgage. (14 Cal. 549; Story Eq. Pleadings, 196; 33 Cal. 32.)

“Tbe decree, therefore, is valid for every purpose, except that it cannot be used to deprive tbe representatives of Catherine Hayes of any rights which she possessed when tbe Moss suit was brought, or tbe decree therein entered.

“ Nor do tbe proofs sustain tbe allegations in tbe plaintiff’s complaint, that tbe purchasers at tbe Moss foreclosure sale acquired only a title, subsequent and subject to tbe lien of tbe plaintiff’s mortgage. As to tbe rest of tbe world, tbe purchaser took tbe whole estate and interest of tbe mortgagor and mortgagee, as tbe same existed at tbe date of tbe Moss mortgage, and that lien was swallowed by tbe title. ( 7 Paige, 250; 16 Barb., 25.) But equity will keep tbe two estates — or tbe legal title and the-mortgagees’ interest — although held by tbe same person, separate, whenever *236this is necessary for tbe full protection of sucb person’s just rights. Tbe purchaser at sucb a sale became, as against tbe plaintiff, tbe equitable assignee of tbe claim of tbe first mortgagee, and held a lien on tbe premises to that extent. *(Besser*v. *Shultz et al.;*Supreme Court of Oregon.)

‘ ‘J. Mora Moss brought bis suit to foreclose bis mortgage within four years after tbe maturity of tbe note, to secure which tbe mortgage was executed. He obtained a valid decree, binding upon tbe mortgagor and all persons brought into Court, and tbe purchaser under sucb decree, as against them, acquired tbe legal title, freed of tbe first mortgage; while as against tbe plaintiff, be held tbe legal title, subject to both mortgages, and this, although be still retained bis rights as first mortgagee,

“When tbe mortgagor and mortgagee contract, tbe former agrees that, in case of a breach of tbe agreement on bis own part, tbe latter shall sell tbe land, and that tbe purchaser at sucb sale shall acquire tbe legal title, relieved of tbe lien, as of tbe date of tbe execution of tbe mortgage. A subsequent mortgagee knows of this relation between tbe parties, and what be agrees to accept as a security for bis money is a claim upon tbe surplus of the proceeds of tbe first foreclosure sale beyond tbe prior debt. He has no estate in tbe land itself, nor any lien upon tbe land, except subject to tbe prior lien; that is, be has aright to be paid out of tbe excess. This is, in effect, a right to redeem, and incidentally — if made a party to a foreclosure suit — a right to defend by pleading tbe Statute of Limitations, or tbe invalidity in whole or in part of tbe plaintiff’s claim, or that it is paid. These are not, however substantive and primary defences, but grow out of bis right to redeem — bis right to have tbe fund proceeding from tbe sale as large as possible. Hence, whenever be files a bill to redeem tbe former mortgage, or to redeem tbe former and to foreclose bis own, be may allege and show that tbe claim of tbe prior mortgagee has been exaggerated, or any other kindred fact which will increase tbe fund.

“ Of course, a mortgagee may also be entitled to relief by showing that an apparent prior incumbrance is fraudulent or *237not supported by any consideration, and no decree in a proceeding to which he was not made a party can deprive him of that right. But no suggestion is made by the pleadings or proof herein that the Moss claim was not a valid and just one, or that the decree in his favor was for a greater amount than was actually due. A junior mortgagee possesses the right to extinguish the senior incumbrance. By whatever mode he may seek to exercise this right, it operates a satisfaction of the claim of the prior mortgagee and a release from his lien. When Catherine Hayes’ own debt became due she was entitled to redeem the prior mortgage, and to foreclose the equity of redemption. I use this form of expression for convenience. But a second mortgagee never was compelled to institute two separate actions to secure this result. In England, where the practice is to foreclose strictly, the mode is by bill to redeem from the first mortgage and requiring .the junior incumbrancers to redeem from both the prior mortgages or be foreclosed. But here, the practice has been to sell to satisfy the mortgage, whether it be a first or subsequent mortgage, and the prior incum-brance is protected by the application of sufficient of the proceeds in the first instance to pay his debt and costs. (13 Abbott, 39.) There is no reason in such case why the offer to redeem should be made in the bill in terms, since the very object of the bill is to redeem out of the proceeds of the sale.

*“*No doubt a subsequent mortgagee may bring his action against the mortgagor, without making the prior incum-brancer a party, but any decree in the suit cannot affect the prior incumbrancer, whose rights are paramount. But if the junior mortgagee shall bring his senior into Court, shall he be permitted to ignore his claims as senior mortgagee ? The right then of the plaintiff as against the purchasers at the Moss-foreclosure sale, was a right to redeem.

“A suit of foreclosure, as against younger mortgagees, is a suit to cut off the right of redemption; and as the plaintiff was not made a party defendant by Moss in the former suit the right to redeem was unaffected by the decree and sale *238under it. (22 Cal. 32; 14 Id. 559; Story’s Eq. 196, note; Calvert's Parties in Eq. 132, 137; 11 Cal. 314; 10 Id. 547; 3 John. Cb. 459; 4 Id. 606; 47 Barb. 91; 10 N. T. 356; 31 Id. 157; 1 Paige, 284.)

*“*It is not necessary at this time to pass on any of the other questions presented. New trial granted.” These views, in my opinion, correctly define the law; and I could add nothing to the force and clearness with which they are expressed.

On the argument some questions were raised in respect to the basis on which the plaintiff would be entitled to redeem, as, for example, whether the defendants would be entitled to receive only the purchase price paid for the lands in contest by Moss .at the foreclosure sale, with interest, or whether there should be paid the full amount of the judgment on foreclosure. These questions are not before us on this appeal, not having been passed upon by the District Court; if we were to decide them in advance of the action of the District Court we should be exercising, *pro Jiao vice,*original and not appellate jurisdiction. But the defendants claim that the plaintiff has released Brenham, the mortgagor, from all personal liability for the debt secured by the mortgage to Catherine Hayes, and is, for that reason, entitled to no relief whatever in this action. The argument is that the defendants are entitled to pay off the junior mortgage, and thus release the land from this incum-brance; and'that upon such payment, they would be entitled to be subrogated to all the rights which Catherine Hayes originally had against Brenham, .including the right to hold him personally liable for any deficiency that might remain after exhausting the mortgage security, and that, inasmuch as the plaintiff has released Brenham from this liability, he has thereby, *pro tanto,*defeated this right of subrogation, and cannot for that reason subject the mortgage premises to the lien of said mortgage. This argument assumes that on payment of the junior mortgage the defendants would be entitled, as a matter of law, to be subrogated to all the rights which the junior mortgagee ever had against the mortgagor. But this proposition cannot be maintained.

*239The purchasers at the foreclosure sale sustained a twofold relation to the junior mortgage: First, as baying acquired the legal title of the mortgagor; and second, as having become in equity, the assignees of the debt secured by the first mortgage, or at least so much thereof as was satisfied by the foreclosure sale. In either capacity, if they should select to discharge the debt secured by the junior mortgage, the most that they could claim, if entitled to any relief of that character, would- be the right to be subroga-ted to such rights as the junior mortgagee had at the time of the payment. As assignees in equity of the debt secured by the prior mortgage, they would be under no obligation or necessity to discharge the junior mortgage for the protection of their rights, inasmuch as the first mortgage, by operation of law, had priority over the second; and therefore, if they voluntarily discharged the second mortgage, being under no necessity to do so, they would be simply removing an incumbrance, which could not impair or affect their rights as assignees of the prior mortgage debt; and sub-rogation is only allowed as a matter of right in such cases, when a party is forced, for the protection of his own interests, to discharge an incumbrance which might otherwise jeopardize them. It is evident that, as having succeeded to the legal title of the mortgagor, they would not be entitled to subrogation on payment of the junior mortgage. On acquiring the title of the mortgagor, they toot it *cum onore,*and as his successors in interest, whethér by a voluntary conveyance or at a forced sale, they took the property subject to the incumbrance of the junior mortgage, and, so far as their rights are derived from the mortgagor by means of the foreclosure sale, they stand, in his shoes; that is to say, the legal estate acquired from the mortgagor remains in their hands, subject to the junior mortgage, precisely as it was before: and if they have any right of sub-rogation, it proceeds, not from the fact that they have succeeded to the rights of the mortgagor, but that they are the assignees in equity of the debt secured by the first mortgage, which is kept alive for their protection

*240But, as we bave already seen, as such assignees, if tbey would be entitled to subrogation at all, on which, point I express no opinion, it would only be to such rights as the junior mortgagee had at the time of the payment of his mortgage debt. I do not, therefore, deem it material whether or not the plaintiff had released Brenham from his personal liability.

The defendants insist that the mortgage to the plaintiff is void, because, ás they claim, the proofs show that no promissory note was ever executed or delivered by Bren-ham to Catherine Hayes, as recited in the mortgage, but I deem it useless to discuss that question, inasmuch as the cause is pending in the Court below, and that Court, since the new trial was granted, has not passed upon this point. The same remark will apply as to the question raised in respect to the necessity of having all the parties in interest before the Court before any decree can be rendered for a sale of the mortgaged premises, which question is yet pending and undecided in the Court below.

The order granting a new trial is affirmed.

Wallace, J., having been of counsel in the Court below, did not sit in this case.

Sprague, J., expressed no opinion.