such court or judge may, by an order, require the judgment debtor to appear at a specified time and place before such judge, or a referee appointed by him, to answer concerning the same; and such proceedings may thereupon be had for the application of the property of the judgment debtor toward the satisfaction of the judgment as are provided upon the return of an execution. Instead of the order requiring the attendance of the judgment debtor, the judge may, upon affidavit of the judgment creditor, his agent or attorney, if it appear to him that there is danger of the debtor absconding, order the sheriff to arrest the debtor and bring him before such judge. Upon being brought before the judge, he may be ordered to enter into an undertaking, with sufficient surety, that he will attend from time to time before the judge or referee, as may be directed, during the pendency of proceedings and until the final termination thereof, and will not in the meantime dispose of any portion of his property, not exempt from execution. In default of entering into such undertaking he may be committed to prison. Stat. 1854, 635; stat. 1851, 90, omitted all after the words, "return of execution."

6 Cal. 16; 7 Cal. 201; 35 Cal. 398.

§ 716. * (§ 240.) After the issuing of an execution against property, and before its return, any person indebted to the judgment debtor may pay to the sheriff the amount of his debt, or so much thereof as may be necessary to satisfy the execution; and the sheriff's receipt is a sufficient discharge for the amount so paid.

7 Cal. 201; 26 Cal. 589; 33 Cal. 528; 35 Cal. 398.

§ 717.*(§ 241.) After the issuing or return of an execution against property of the judgment debtor, or of any one of several debtors in the same judgment, or upon proof by affidavit or otherwise, to the satisfaction of the judge, that any person or corporation has property of such judgment debtor, or is indebted to him in an amount exceeding fifty dollars, the judge may, by an order, require such person or corporation, or any officer or member thereof, to appear at a specified time and place before him, or a referee appointed by him, and answer concerning the same.

7 Cal. 201; 26 Cal. 589; 35 Cal. 398; 38 Cal. 523.

§ 718. *(§ 242.) Witnesses may be required to appear and testify before the judge or referee, upon any proceeding under this chapter, in the same manner as upon the trial of an issue. 26 Cal. 589; 35 Cal. 398; McCullough v. Clark, April T., 1871.

§ 719 *(§ 243.) The judge or referee may order any property of a judgment debtor, not exempt from execution, in the hands of such debtor or any other person, or due to the judgment debtor, to be applied towards the satisfaction of the judgment.

Stat. 1851, 91, added: "Except that the earnings of the debtor for his personal services at any time within thirty days next preceding the order, shall not be so applied, when it shall be made to appear by the debtor's affidavit, or otherwise, that such earnings are necessary for the use of a family supported wholly or partly by his labor."

6 Cal. 16; 7 Cal. 203; 26 Cal. 589; 35 Cal. 398; 38 Cal. 524. McCullough v. Clark, 41 Cal. 298; 47 Cal. 132.

§ 720.*(§ 244.) If it appear that a person or corporation, alleged to have property of the judgment debtor, or to be indebted to him, claims an interest in the property adverse to him, or denies the debt, the court or judge may authorize, by an order made to that effect, the judgment creditor to institute an action against such person or corporation for the recovery of such interest or debt; and the court or judge may, by order, forbid a transfer or other disposition of such interest or debt, until an action can be commenced and prosecuted to judgment. Such order may be modified or vacated by the judge granting the same, or the court in which the action is brought, at any time, upon such terms as may be just.

35 Cal. 398; 38 Cal. 524.

§ 721.* (§ 245.) If any person, party or witness, disobey an order of the referee, properly made, in the proceedings before him under this chapter, he may be punished by the court or judge ordering the reference, for a contempt.

35 Cal. 398.

Lapressly applied to justices' courts by § 905.

TITLE X.

ACTIONS IN PARTICULAR CASES.

CHAPTER I.
II.

ACTIONS FOR THE FORECLOSURE OF MORTGAGES. ACTIONS FOR NUISANCE, WASTE AND WILFUL TRESPASS, IN CERTAIN CASES, ON REAL PROPERTY. III. ACTIONS TO DETERMINE CONFLICTING CLAIMS TO REAL PROPERTY, AND OTHER PROVISIONS RELATING TO ACTIONS CONCERNING REAL ESTATE. IV. ACTIONS FOR THE PARTITION OF REAL PROPERTY. V.' ACTIONS FOR THE USURPATION OF AN OFFICE OR

FRANCHISE.

VI. OF ACTIONS AGAINST STEAMERS, VESSELS AND
BOATS.

CHAPTER I.

ACTIONS FOR THE FORECLOSURE OF MORTGAGES.

SECTION 726. Proceedings in foreclosure suits.

727. Surplus money to be deposited in court.

728. Proceedings when debt secured falls due at different times.

§ 726. (§ 246.) There can be but one action for the recov ery of any debt, or the enforcement of any right secured by mortgage upon real estate or personal property, which action must be in accordance with the provisions of this chapter. In such action, the court may, by its judgment, direct a sale of the encumbered property (or so much thereof as may be necessary), and the application of the proceeds of the sale to the payment of the costs of the court and the expenses of the sale, and the amount due to the plaintiff; and if it appear from the

sheriff's return that the proceeds are insufficient, and a balance still remains due, judgment can then be docketed for such balance against the defendant or defendants personally liable for the debt, and it becomes a lien on the real estate of such judgment debtor, as in other cases on which execution may be issued. No person holding a conveyance from or under the mortgagor of the property mortgaged, or having a lien thereon, which conveyance or lien does not appear of record in the proper office at the time of the commencement of the action, need be made a party to such action; and the judgment therein rendered, and the proceedings therein had, are as conclusive against the party holding such unrecorded conveyance or lien as if he had been made a party to the action.

Stat. 1865-66, 704, inserted the words "in actions for the foreclosure of mortgages," instead of "in such actions;" also added the words "and shall in all respects have the same force and effect."

Stat. 1851, 91, read: "In an action for the foreclosure or satisfaction of a mortgage of real property, or the satisfaction of a lien or incumbrance upon property, real or personal, the court shall have power by its judgment to direct a sale of the property, or any part of it; the application of the proceeds to the payment of the amount due on the mortgage, lien or incumbrance, with costs, and execution for the balance."

Stat. 1860, 303, read: "There shall be but one action for the recovery of any debt, or the enforcement of any right secured by a mortgage, or lien upon real estate, or personal property, which shall be for an enforcement of said lien, or mortgage, in accordance with the provisions of this chapter. In such action, the court shall have power by its judgment, or decree, to direct a sale of the incumbered property, or such part thereof as shall be necessary, and the application of the proceeds to the payment of the costs and expenses of the sale, the costs of the suit, and the amount due to the plaintiff. If it shall appear from the sheriff's return that there is a deficiency of such proceeds, and a balance still due to the plaintiff, the judgment shall then be docketed for such balance, and shall, from the time of such docketing, be a lien upon the real estate of the judgment debtor, and an execution may be issued by the clerk of the court, as upon other judgments against the property of the judgment debtor, to collect such balance or deficiency."

Stat. 1861, 306-7, same in substance as statute 1860, inserting words "against the defendant or defendants personally liable for the debt," after "such balance;" also "in like manner and form" after "clerk of the court;" also adding the words "from the property of the judgment debtor" after "deficiency," at the end, and omitting them where they

occur.

5 Cal. 416, 492; 6 Cal. 99; 9 Cal. 123, 365: 16 Cal. 404, 461, 559; 18 Cal. 465; 21 21 Cal. 87; 22 Cal. 116; 23 Cal, 16; 27 Cal. 258, 418, 596; 28 Cal. 226, 520; 29 Cal. 253; 31 Cal. 78; 34 Cal. 548; 36 Cal. 390; Carpentier v. Brenham, 40 Cal. 221. 42 Cal. 175; 45 Cal. 433; 43 Cal. 59, 187; 49 Cal. 248.

Decree: 1 Cal. 351; 6 Cal. 173; 9 Cal. 426; 11 Cal. 14; 14 Cal. 156, 640; 16 Cal. 461, 559; 18 Cal. 465; 21 Cal. 76, 103, 589; 23 Cal. 596; 25 Cal. 337; 27 Cal. 418; 29 Cal. 385; 37 Cal. 223; 39 Cal. 304, 504 49 Cal. 679.

Parties: 9 Cal. 123; 10 Cal. 265, 547; 11 Cal. 307; 15 Cal. 483; 16 Cal. 461, 559, 580; 17 Cal. 578; 18 Cal. 650; 21 Cal. 87; 23 Cal. 106; 24 Cal. 379, 505; 25 Cal. 154; 28 Cal. 194, 226; 29 Cal. 253; 33 Cal. 265; 40 Cal. 221.

Redemption: 2 Cal. 387; 9 Cal. 365; 10 Cal. 547; 11 Cal. 307; 16 Cal. 461; 21 Cal. 108; 22 Cal. 330; 23 Cal. 16; 24 Cal. 506; 34 Cal. 648; 35 Cal. 713; 36 Cal. 390; 40 Cal. 62; Carpentier v. Brenham, 40 Cal. 221.

Sale: 10 Cal. 258; 11 Cal. 14; 17 Cal. 626; 24 Cal. 505; 30 Cal. 367, 621 48 Cal. 105.

§ 727. (§ 247.) If there be surplus money remaining after payment of the amount due on the mortgage, lien or incumbrance, with costs, the court may cause the same to be paid to the person entitled to it, and in the meantime may direct it to be deposited in court.

§ 728. (§ 248.) If the debt for which the mortgage, lien or incumbrance is held, is not all due, so soon as sufficient of the property has been sold to pay the amount due, with costs, the sale must cease; and afterwards, as often as more becomes due, for principal or interest, the court may, on motion, order more to be sold. But if the property cannot be sold in portions, without injury to the parties, the whole may be ordered to be sold in the first instance, and the entire debt and costs paid, there being a rebate of interest where such rebate is proper. 15 Cal. 499; 23 Cal 16; 45 Cal. 165.