TITLE VIII.

ACTIONS IN PARTICULAR CASES.

CHAPTER I.

ACTIONS FOR THE FORECLOSURE OF MORTGAGES.

Action of foreclosure.

§ 248. There shall be but one action for the recovery of any debt or the enforcement of any right secured by mortgage upon real estate or personal property, which action shall be in accordance with the provisions of this chapter. In actions for the foreclosure of mortgages the court shall have power, by its judgment, to direct a sale of the incumbered 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 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 shall then be docketed for such balance against the defendant or defendants personally liable for the debt, and shall then become 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 shall be as conclusive against the party holding such unrecorded conveyance or lien as if he had been made a party to said action, and shall in all

respects have the same force and effect. (a) [Amendment, approved April 2, 1866; 1865–6, 701.

[9 Cal. 123; 16 Cal. 404; 18 Cal. 460; 21 Cal. 87, 103; 22 Cal 116; 23 Cal. 596; 25 Cal. 337; 26 Cal. 577; 27 Cal. 258, 418, 596; 28 Cal. 194, 226, 520; 29 Cal. 385; 30 Cal. 367, 621; 31 Cal. 78.]

(a) Original section:

§ 246. 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.

It was amended, April 28, 1860, 298, so as to read as follows:

§ 246. There shall be no 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 writ, 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.

It was again amended, May 8, 1861, 306, so as to read as follows:

§ 246. There shall be but one action for the recovery of any debt, or the enforcement of any right, secured by mortgage, or lien, upon real estate, or personal property, which action shall be in accordance with the provisions of this chapter. In such action, the court shall have power, by its decree, or judgment, to direct a sale of the incum bered property, (or such part thereof as shall be necessary) and the application of the proceeds of the sale to the payment of the costs

Surplus money, disposition of.

§ 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.

Proceedings when mortgage due in instalments.

$248. If the debt, for which the mortgage, lien, or incumbrance is held, be not all due, so soon as sufficient of the property has been sold to pay the amount due, with costs, the sale shall cease; and afterwards 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.

As to writ of assistance, see 23 Cal. 48; 24 Cal. 561; 27 Cal. 297; 31 Cal. 220,]

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 against the defendant, or defendants, personally liable for the debt, and shall, from the time of such docketing, be a lien upon the real estate of the judgment debtor, and an execution may thereupon be issued by the clerk of the court, in like manner and form, as upon other judgments to collect such balance, or deficiency, from the property of the judgment debtor.

CHAPTER II.

ACTIONS FOR NUISANCE, WASTE AND WILFUL TRESPASS, IN CERTAIN CASES, ON REAL PROPERTY.

Nuisance defined and action therefor.

$ 249. Anything which is injurious to health, or inde. cent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action. Such action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance; and by the judgment, the nuisance may be enjoined or abated, as well as damages recovered.

[1 Cal. 462; 5 Cal. 120; 6 Cal. 101; 24 Cal. 359; 29 Cal. 156, 427; 30 Cal. 379, 520, 573.

As to jurisdiction in "action to prevent or abate a nuisance," see "Act concerning the courts of justice of this State, and judicial officers," approved April 20, 1863, 333; Hittell's Gen. Laws, 1262.]

Waste, action therefor.

§ 250. If a guardian, tenant for life or years, joint tenant, or tenant in common of real property, commit waste thereon, any person aggrieved by the waste may bring an action against him therefor, in which action there may be judgment for treble damages.

Trees and timber, action for destroying.

§ 251. Any person who shall cut down, or carry off, any wood or underwood, tree or timber, or girdle or otherwise injure any tree or timber on the land of another person, or

on the street or highway in front of any person's house, village or city lot, or cultivated grounds; or on the commons or public grounds of any city or town; or on the street or highway, in front thereof, without lawful authority, shall be liable to the owner of such land, or to such city or town, for treble the amount of damages which may be assessed therefor, in a civil action, in any court having jurisdiction.

[See also in connection with the above section, "An Act for the protection of growing timber on all possessory claims, and other private property, in certain counties in this State, and on and along public streets or highways and on public grounds," approved April 19, 1862, 307; Hittell's Gen. Laws, 7221.]

Timber for highways or bridges.

$ 252. Nothing in the last section shall authorize the recovery of more than the just value of the timber, taken from uncultivated wood land, for the repair of a public highway or bridge upon the land, or adjoining it.

Damages in forcible entry and unlawful detainer.

§ 253. If a person recover damages for a forcible or unlawful entry in or upon, or detention of, any building or any cultivated real property, judgment may be entered for three times the amount at which the actual damages are assessed. [As to forcible entry and unlawful detainer, see post, 708.]

CHAPTER III.

ACTIONS TO DETERMINE

CONFLICTING

CLAIMS TO REAL

PROPERTY, AND OTHER PROVISIONS RELATING TO ACTIONS CONCERNING REAL ESTATE.

Action to quiet title.

§ 254. An action may be brought by any person in possession, by himself or his tenant, of real property, against