*1 Jan. 1908.] Weddebien. Cabstenbbook January Appellate District. No. 396.

[Civ. Third H. J. CARSTENBROOK, CARSTENBROOK and D. Co- J.

partners, etc., MARY WEDDERIEN Respondents, v. J. W. Appellants. A. WEDDERIEN, Mortgage—Subrogation— Action to Foreclose Canceled Chattel Equity—Jurisdiction—Transfer Case in and Betransfer.—An set action to aside the mortgage, release of a chattel and to fore- same, principles close equitable subrogation, is a case equity, jurisdiction supreme within court, of the and when appealed properly to this court was transferred for power which had court, retransfer to this court same determination. Id.—Payment Mortgage upon Attachment—Bemedy Judicial Sale—Equitable Shown.—Where attached Facts not mortgage, compelled secured chattel and were mortgage debt, mortgagee thereupon released .and equitable canceled were not entitled an mortgage, sub- rogation to cancel the release and foreclose the where appear no facts the record to warrant it. such case, money for of the reimbursement so paid, proceeds upon execution, of a sale under section 2970 remedy. an Cdvil exclusive Behearing—Equitable Id.—Beversal—New for Trial—Petition Facts Stated Petition not a Ground—Amendment of Plead- ing.—Equitable facts, persuasive force, appearing urged upon petition record, rehearing, for the first time for ground though they rehearing, may justify are not a an amend- complaint upon court, trial ment of new ordered equitable subrogation an as warrant the extent paid upon the chattel and interest. Superior from a APPEAL Court denying County, from an order a new Yuba trial. P.E. Judge.

McDaniel, are stated

The facts court. Johnson, Appellants. and Waldo S. Carlin,

W. H. Bespondents. E. Brittan, Ebert, T. and J.

M. App.—30 action to set aside release and satisfaction of certain chattel given by have Wal mortgage, said defendants Dinsmore, lace force to be in full determined and declared *2 and plaintiffs adjudged effect and to be the owners have thereby mortgage and of holders note said and the secured secured, and payment entitled the full of all the sums so mortgage and also to have said foreclosed. sought involving

The does complaint, relief the as it subrogation” pecu- “equitable foreclosure, and is matter liarly cognizance have appeal and the should not been taken to this court. supreme cause is court. transferred

Hart, J., and Chipman, J.,P. concurred. day

On the sixth of January, 1908, the cause was retrans- determination,, ferred court to this court for following and on the 23d was January, 1908, rendered: eighth day August, 1904, plain On brought against

tiffs suit for the sum $591 defendants Thereupon and a writ of attachment interest. was issued placed county in and the hands of the sheriff of Yuba prop for service. He was directed to personal attach certain erty belonging upon to defendants which there was a chattel mortgage in favor of one Wallace Dinsmore to secure the payment promissory $1,500. acting note The sheriff, Code, levy section view of 2969 of the Civil declined to plaintiffs writ of on said unless attachment mortgagee deposit or tender with county county payable clerk or treasurer of said to the mortgagee mortgage. on amount due said order said deposited thereupon clerk, with the plaintiffs county said demand, $1,509.35. said the sum There accordance August paid the clerk said after, on sum to the upon county mortgagee, who entered the record said acknowledgment the usual office satisfaction recorder’s mortgage. discharge Upon payment of said of said and plaintiffs .the clerk the sheriff money by levied said upon property. said The action af writ of attachment was judgment rendered in favor of plaintiffs and terward tried n Jan. v. Wedderien.

for the sum of appeal $659.86 and costs. An was taken to judgment this court (Carstenbrook was affirmed.

Wedderien, 117].) No execution claiming plaintiffs, equi- issued this judgment, but table subrogation, suit to set aside the satisfaction and release of said said deter- and have mined to be in full plaintiffs force and and that effect, adjudged the lawful owners and holders thereof entitled and thereby of the full amount secured and foreclosure of and the sale of said erty. After trial plaintiffs was rendered for sum of $1,846.76 attorneys’ fees costs $200 the other relief prayed complaint. for in the

Prom denying order their motion for a new trial defendants appealed. have (cid:127) Appellants admit that plaintiffs are entitled to be reim-

bursed for the amount mortgage, account of said they contend recourse is attach- *3 ment suit. It is “They declared their brief: have ob- tained their in that action proceed and should have execution out, upon issued property levied in ques- the tion and then have it sold accordance with section 2970 Code, the Civil proceeds applied mortgage debt with interest and the balance judgment. These sections of the Civil Code deal with subject exclusively the and under well-established rules interpretation lay should be held to down the rule that must be followed.” appellants right

We think clearly are in their contention. is a statutory matter of regulation, and we must provisions look to the of the statute for the course to pur- “Equitable subrogation” sued. implies that there is no ade- quate remedy law, at but here the is not ade- simple Indeed, quate, plain, speedy. but it is is diffi- why plaintiffs cult to understand should have resorted to the suit, purpose foreclosure unless the was to secure an attor- ney’s fee and to make conditions as possible burdensome as The statute, certainly, defendants. does not contemplate property twice, in such a case the shall be sold once un- again der foreclosure under execution satisfy in the other action. Section 2969 of provides upon personal Civil what conditions Cabstenbrook mortgaged can be either under attach- erty taken, which is so as follows: “Before the execution, ment or mortgagee officer must or tender to taken, deposit interest, or must debt and treasurer, pay- county clerk or the amount thereof with the done, mortgagee.” Assuming that been able to the attaching provision we find the for the reimbursement (2970) as follows: “When creditor in the next section must process, the officer thus is sold under taken pay- apply follows: 1. To the proceeds the sale as from mortgagee, with interest ment of the sum any, in balance, if payment; the date of said and 2. The ap- are proceeds like manner as the of sales under execution plied dangerous doctrine other eases.” It would'be remedy, another provides where the hold that statute Respondents’ con- may adopted provided. not that is compel interpolation into said section struction would contingency of sub- providing 2970 of for the some direction rogation the attach- foreclosure ing creditor. to furnish the is intended that said section

It is obvious of said creditor for the reimbursement method exclusive by compliance condition prescribes the preceding section process, possession of may, take he under with which property. unjust imposes an in the case at bar taken procedure we that it is defendants, are satisfied upon the

burden legislature. act contemplated say preju- that the defendants no answer ..It expense the. would have bear the reason diced for mortgagee on his in case suit foreclosure mortgage. legislature ignores obvious intent of view This *4 Besides, of attachment. expense the event

avoid this probable quite of a sale result would manifest that the where the the case of foreclosure different presented any lien that here where other from free from of the sheriff under other possession is in the satisfy judgment. to another to execution process justify to by the course The authorities cited simply application illustrate the in the court below pursued equitable principle subrogation, of the well-known . Jan. v. pointed point where the statute not in here are 90 Cal. Redington Cornwell, legal remedy. scope of The follows: syllabus as 40], is disclosed Pac. [27 an- his own and pays who corporation “A stockholder a the debts proportionate share other stockholder’s his protect to legitimate and fair effort corporation, under a con- to is entitled corporate property, own interest of such the extent to tribution from the other stockholders be subro- paid and to proportion of the debt stockholders’ aas neces- gated rights the creditor and remedies of sary contribution.” to enforce such means two 196], Pac. McCloskey, In [36 Shaffer to secure had executed in common

tenants being them, unable land, and one purchase price conveyed his interest mortgage, had his pay share the latter cotenant, in consideration his the land to mortgage was after- due, and the full amount would knowl- without payment, such of record ward satisfied made a grantor previously grantee his edge of justly held that It was half of the land. of trust of his deed maintain an action could person paying the against of trust. protect his interest the deed it to to revive through McFarland, Mr. Justice court, his “Respondent clearly payment intended that erly said: benefit, inure to his own and not to ground equitable is no appellants; and there the benefit They object inuring. can to it so appellants upon which prior mortgage, astray were not led they expected position which left the exact and are was taken.” occupy when the .trust deed 20], is a clear case Duff,

Randall v. subrogation purchaser where the in under an having paid off foreclosure the mort effectual mortgages, rights entitled to the and remedies of gages, is held the mort court, speaking Mr. gagees. Temple, Justice “Subrogation by courts of equity is allowed said: secure Ordinarily place it takes when one has justice. a debt ought pay. cases, such one else sometimes which some paying orig succeeds which person so securities This jus for his debt. is allowed creditor held when inal person securities which requires it, tice obtains insure merely him held He will reimbursement.. *5 470 Cal. Carstenbrook Wedderien. [7 permitted be speculation not a out of it. . . . make Obvi- ously equity a court of will a not allow resort to such securi- necessary beyond ties purpose.” what is to effectuate the 267], Brown Rouse, 645, the doe Pac. [58 equitable subrogation again by trine of discussed court reached Chipman, Commissioner and conclusion that a proper application was not case for its because the claiming of it the benefit and further volunteer, was more for had fact, it is said: “There was no mistake he knowledge authority acting; was under which Rouse fraud, his question mistake one of law. No accident ” or fact mistake of arises. The other cited are in line with by authorities reviewing necessity no them and we see foregoing, in detail. in at course, appeared proceedings

Of if it that property were tachment suit invalid so defective that legally judg could under an execution not be sold prob would ment, presented and it a different case would ably of Randall v. principle Duff, within the already But, seen, 20]. that affirmed; we must assume said cause been regular all that suffi proceedings were and they pursue if satisfy plaintiffs’ claim cient value to any they But at rate remedy pointed out the statute. statute; they knowledge requirements had they according conditions, attach to its and must proceeded consequences. abide order are reversed. P. Chipman, J., concurred.

Hart, J., rehearing j this cause was denied petition A I February appeal, fol- court district j rendered: lowing was then petition Respondents rehear- | rehearing grounds they “assign as their for a ing state j which existed relation matters certain herein | plainly which were hearing, time at the cause were As a matter fact record.” forth set - and, at cannot be all, course, record set forth i us. considered by Jan. 1908.] v. until the

It is action was not instituted claimed released chattel been bond; said un- pursuance of a and that from attachment *6 dertaking $700, while the amount was in"the sum of original $867.40, and action was action, in that execution property is now reimburse- remedy secure respondents’ and therefore due on the ment of the amount No rights mortgagee. rea- subrogated undertaking is so small why son the amount is.stated or its why nor was not returned the sheriff plaintiffs contemplated section full value inferentially However, it of Civil Procedure. original judgment paid, appears petition theory that subro- plaintiffs probably satisfying gation $1,508. would lie cognizance

These stated and additional matters of implied petition persuasive force, are of grant- justify outside would not us record and ing rehearing; but as the was ordered back for cause why not be plaintiffs new trial can see no reason we permitted complaint,-setting up the additional to amend their provided facts which in their render inadequate inoperative. the statute In ease this done invite respondents, should be for we judge question consideration of the learned trial whether the amount recovered should limited to actually paid legal plaintiifs, rate of interest. rehearing is denied. J., Hart, J., P.

Chipman, concurred.