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