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property owned by Becker, the contractor, which mortgage by its terms covered the debts of Becker growing out of these materials so furnished him. Because of the existence of this mortgage security the trial court decided against the validity of his lien claims for materials furnished and decreed that he could not participate in the funds admittedly due to the holders of valid liens. Hubbard's appeals in all three of the above entitled cases present this as the principal question for determination. What is here said upon it is, therefore, applicable to all the cases. Certain points of minor significance arising separately in the different cases will receive their separate consideration.

The principal inquiry has been thus stated: "May the defendant Hubbard, as the creditor of the defendant Becker, retain and resort to the security of a mortgage lien, and at the same time claim and foreclose a materialman's lien for the satisfaction of an indebtedness which is found to be clearly covered by both liens?" The trial court and the court of appeals made answer (1) that by virtue of section 726 of the Code of Civil Procedure this could not be done. That section declares that "There can be but one action for the recovery of any debt. . secured by mortgage upon real or personal property." (2) That aside from the consideration of section 726, the fact that Hubbard had taken security from Becker for the latter's debt, even though that security was in the form of a mortgage upon real property of Becker, operated to annul the former's right to his materialman's liens.

1. At the outset it is important to note what changes the legislature made in the common law rule, and therefore what it sought to accomplish in the declaration contained in section 726 of the Code of Civil Procedure. At common law a mortgage was a conveyance of title upon condition subsequent. That title became absolute and indefeasible upon breach of the condition. No right of redemption existed. The sole recourse was a resort to equity for relief against the forfeiture. Moreover, the mortgagee had his right to go to law to recover the amount of the mortgage debt and to enforce his recovery by imprisonment of the debtor. Nor did the doing of any of these acts impair his mortgage security. Under our statutory system the first radical change was to declare that a mortgage conveyed no title, but gave only the security of a lien upon the property. (Civ. Code., secs. 2920, 2923, 2888.) This radical change having been established, section 726 became the expression of a natural corollary to that change. To simplify procedure and to relieve the mortgagor (who was usually thought not always the primary debtor) it was declared that but one action should be brought to enforce the mortgage debt. The mortgaged property thus became the primary fund which must first be exhausted before any other remedy or relief could be had against the primary debtor. If this primary fund should prove insufficient to extinguish the debt, then in the same action a deficiency judgment could be docketed against the primary debtor. No longer could the primary debtor be pursued in an action which

did not take into recognition the existence of the mortgage security. Otherwise it would be true today that if the primary debtor had given a mortgage upon his own property, and subsequently had sold it subject to the mortgage, the mortgagee could enforce the debt against the primary debtor without recourse to the mortgaged property, leaving the primary debtor to his chance of recovery over against his vendee. Or, again, the mortgage might have been given as security by one other than the primary debtor and with the understanding between the mortgagor and and the primary debtor that the mortgaged property should first be exhausted in payment of the debt. If our existing rule did not obtain, the mortgagee could in like manner pursue the pri mary debtor without reference to the security. [1] Every reason for the existence of the rule discloses and declares that it was designed for the benefit of the primary debtor, and indeed it is so decided. (Ould v. Stoddard, 54 Cal. 613; Toby v. Oregon Pav. R. R. Co., 98 Cal. 494; Hibernia Sav. & Loan Soc. v. Thornton, 109 Cal. 427; Commercial Bank of Santa Ana v. Kershner, 120 Cal. 495; Otto v. Long, 127 Cal. 471; Hellyer v. Baldwin, 53 New Jersey Law, 141.) This provision, then, being thus clearly designed for the protection of the primary debtor, is one which he not only can waive (Civ. Code, sec. 3513; Hibernia Sav. & Loan Soc. v. Thornton, supra; Hellyer v. Baldwin, supra), but, still further, is one which has no applicability whatsoever unless the action which is brought directly affects his rights under the mortgage contract. And by that we mean this: that the law never contemplated that because a man had taken a mortgage he could not take other independent security for his debt, and, if the contract for such security permitted it, enforce such contract without reference to the mortgage debt. Indeed, our books are full of cases where the doing of this precise thing has been uniformly countenanced and upheld, notwithstanding the fact that plaintiff's success in the action has resulted in the payment of his debt secured by mortgage, without recourse or reference to the mortgage security. Thus in Knowles v. Sandercock, 107 Cal. 629, the action was brought against the stockholders for a liability of the corporation, which corporate liability was evidenced by its note secured by mortgage. It was urged that the mortgagee must first exhaust the mortgage security in the "one action" contemplated by section 726. This court said: "The note was due but the mortgage had not been foreclosed. This fact constitutes no defense for defendants. They are not affected by the fact that because of the mortgage only an action to foreclose could be brought against the corporation. The mortgage only affects the remedy against the mortgagor-the corporation. The liability of the stockholder, as has already been said, is primary in the sense that he is not a surety. He is not injured nor is he benefited by the fact that the corporation has given security. (Sonoma Valley Bank v. Hill, 59 Cal. 107.)" We have quoted this language because it succinctly declares the principle vital to this consideration. "The mortgage only affects the remedy against the mortgagor" or primary debtor. Again in

Adams v. Wallace, 119 Cal. 67, the action was against an independent guarantor of a debt secured by mortgage and it was held that the action could be maintained and the payment of the debt enforced without regard to the existence of the mortgage because the action was upon an independent contract to pay the debt upon default of the principal debtor. Identically the same proposition was decided in Carver v. Steele, 116 Cal. 116, and Kinsell v. Ballou, 151 Cal. 754, where action was brought against the guarantors by endorsement of a promissory note secured by mortgage. Yet it is to be noted that in each one of these cases the result was the payment of the debt secured by mortgage without recourse to the mortgage security. Why was this permitted to be done? The answer is found in what has already been said: that these other actions not being directed against the primary debtor entitled to rely on the mortgage security, but being based upon independent contracts, were not within the spirit or meaning of section 726. The primary debtor or mortgagor alone, or he holding under or in privity with him, may invoke section 726 for his own protection. It never has been, nor has it ever been declared to be the law in this state, that a mortgagee may not take security other and in addition to his mortgage security, and if the contract with the giver of such security permits, may not enforce his debt from this third party without reference to the mortgagor and his security. Indeed, in Commercial Bank of Santa Ana v. Kershner, supra, one of the cases upon which respondents rely, it is said that "a debt may be secured by pledge, mechanic's lien, judgment lien, attachment or otherwise, and yet the security may be reinforced by a mortgage on the same or other property".

We may now with propriety turn to the cases which respondents cite as supporting their contention, for the purpose of determining whether any of the previous utterances of this court conflict with the views here expressed. The first of these is Ould v. Stoddard, 54 Cal. 613. Defendant had given to plaintiff a note secured by mortgage. In a foreign jurisdiction-the state of Ohio-plaintiff had brought a personal action upon the note and had secured a personal judgment against him. No part of the amount of the judgment so recovered had been paid. Thereafter in this state the plaintiff brought his action to foreclose the mortgage. This court quoted section 726 of the Code of Civil Procedure, declared that the plaintiff had brought his "one action", that in that one action he had not sought to enforce his security, and that he had therefore waived it. Certainly nothing in this case militates against the propositions which we have enunciated, but to the contrary it pronounces in accordance with what we have said, that the section was framed for the benefit of the mortgagor to relieve him from harassment in repeated litigations. The next case is Bartlett v. Cottle, 63 Cal. 366. Here a promissory note was given secured by mortgage. The payee of the note, the mortgagee, brought his action against the maker, the complaint being silent as to the mortgage. The existence of the mortgage was set forth as matter in abatement.

The trial court held the security to be valueless and therefore the holder of the note to be entitled to prosecute his action without reference to the mortgage, upon the theory now well settled that if the mortgage is valueless there is no security to be enforced. (Otto v. Long, 127 Cal. 471.) This court held that "On an examination of the testimony we are of opinion that the security was not without value," and therefore reversed the judgment, in effect telling the plaintiff that he must exhaust the security of the mortgage before obtaining a personal judgment against the mortgagor. Hall v. Arnott, 80 Cal. 348, was an effort to foreclose a mortgage in the form of a deed absolute. The action was between the successors in interest of the original parties. It was held that through laches, by virtue of their failure to include or to have included this mortgage debt in an earlier action in foreclosure, the holders of the security had lost their right to the lien, and that the mortgage being in form a deed absolute, the owners of the property were in turn entitled to a decree removing the apparent cloud upon their title. This does not amount to a declaration that the parties may not have more than one form and kind of security, but merely to a declaration that through their own neglect, growing out of the peculiar circumstances of the case, they had lost their right to enforce one of their securities. The next case is Stockton Savings & Loan Society v. Harrold et al., 127 Cal. 612. This case is substantially the converse of the one last discussed. Defendant McKee held security by way of mortgages. He, a cross-complainant, set up these mortgages. The trial court struck out a portion of his cross-complaint, preventing the foreclosure in the action before it of a lien upon a large tract of land. This court held that the action of the trial court was improper; that if the defendant were to sue in his own independent action of foreclosure he would lose the lien of that particular mortgage if it were omitted from the foreclosure and by virtue of the fact that he is brought in as a defendant and a cross-complainant he cannot be compelled to lose part of his security when thus forced to foreclose his mortgage. Commercial Bank of Santa Ana v. Kershner, 120 Cal. 495, presented the following facts: Defendants were indebted to plaintiff upon their promissory notes. Plaintiff began its action and attached certain real property of defendants. Defendants then gave a mortgage upon the property. This mortgage covered property not under attachment as well as the property under attachment. Plaintiff proceeded to judgment in its attachment suit and sold out the interest of the defendants in the property under attachment. There remained a deficiency judgment. Plaintiff then commenced its action in foreclosure, and all these matters having been set up in the complaint defendants' demurrer to that complaint was sustained. This court held that the taking of the mortgage under these circumstances was the creation of a new contract between the parties, that the debt did not become due under the terms of the mortgage until one year after its creation, that by reason of this novation plaintiff had no right to prosecute its attachment suit to judg

ment, but that the mere fact that the defendants in the attachment suit interposed no objection to plaintiff so doing, did not estop them from subsequently raising the objection that plaintiff's conduct, under the authority of Ould v. Stoddard, supra, amounted to a waiver of the mortgage security. It is important to note that these actions were between the principals to the mortgage contract, and that the parties objecting were the mortgagors themselves, who had suffered one action for the collection of their debt. This concludes the review of the authorities cited by respondents, and it is manifest that in them there is no decision, and indeed no utterance, in contrariety to the propositions we have enunciated, for here the action is not against the primary debtor-the mortgagor-and has no relation to nor bearing upon the mortgage contract. The mortgagor in this case was not even a necessary party to the action seeking to foreclose the materialman's lien. (Russ etc. Co. v. Garrettson, 87 Cal. 589; Green v. Clifford, 94 Cal. 49; Yancy v. Morton, 94 Cal. 558.)

[2] 2. It is sometimes, but not always nor even usually, true, that the taking of new or additional security operates to destroy an existing lien. It so operates only in four classes of cases: (1) Where the destruction is worked by virtue of a positive declaration of law; (2) where it is worked by the agreement and contract of the parties; (3) where it is worked by necessary intendment growing out of the agreement of the parties, in that the taking of the later security is inconsistent with the continued existence thereafter of the lien, and, finally, (4) where the nature of the earlier or later security, as that it is concealed or undisclosed, gives rise to a situation where it would partake of fraud upon other claimants to permit the earlier lien to be held valid, whereupon equity interposes and declares it to have been waived or lost by the taking of the later security, or what is in effect the same, erects a bar to its enforcement. To one or another of these classes all cases decreeing the destruction of an earlier lien by virtue of the taking of later security are referable. Thus in Barrows v. Baughman, 9 Mich. 213, the builder's agreement with the owner was that he should take a mortgage upon the property in payment of his debt. The supreme court of Michigan held that under their lien law, by virtue of his acceptance of the mortgage upon the property, the builder had waived his right to a mechanic's lien, and also "that the statute creates no lien where the parties by their contract provide for a different security upon the same land for the same debt which the lien would otherwise secure". In this case the court declared for the non-existence of the mechanic's lien law upon two of the grounds above enunciated-one, that by operation of law a lien was denied in such cases, the other, that by the intendment of the parties the existence of the lien was inconsistent with the taking of the mortgage upon the same land for the same debt, or, in other words, that the mortgage was substituted for the lien. To the same effect is Gorman v. Sagner, 22 Mo. 137. There the plaintiff, who had a mechanic's lien upon

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