No notice of the pendency of the action was, so far as appears, filed in the office of the recorder. Prior to May 1, 1872, the provision of the Practice Act (sec. 27), in relation to filing notice of the pendency of actions, did not apply to the action of ejectment. (Long v. Nevill, 29 Cal. 131;

Wattson v. Dowling, 26 Cal. 125.)

By the act of March 2, 1872, which took effect May 1, 1872, the Practice Act was so amended that notice of the pendency of an action applied alike to causes affecting the right to possession of real property with those relating to the title.

At common law, the purchaser pendente lite of the subject of the controversy took as a mere volunteer or intruder, and was bound by the result of the controversy. (Richardson v. White, 18 Cal. 106; Debell v. Faxworthy's Heirs, 9 B. Mon. 228; Secombe v. Steele, 20 How. 105; Green v. White, 7 Blackf. 242; Baker v. Pierson, 5 Mich. 461.)

By section 263 of the Practice Act it was provided that "an action for the recovery of real property against a person in possession cannot be prejudiced by any alienation made by such person, either before or after the commencement of the action."

The defendant Dalton was in possession, and an action of ejectment was being prosecuted against him to recover possession.

Pending such action, and before the amendment of March, 1872, he conveyed fifty-vara lot No. 6, in block 371, a portion of the demanded premises in that cause, and a portion of which fifty-vara lot is included in this action, to plaintiff Partridge.

His grantee was bound equally with himself by the judgment afterward rendered in that action, and the judgment was admissible in evidence against the plaintiff in this cause, and plaintiff's objection thereto was properly overruled.

Whether the judgment offered in evidence was a bar

to the recovery by plaintiff of so much of the land as was conveyed to him by the deed of June 15, 1872, executed after the amendment of the Practice Act, so as to require notice of the pendency of actions of this character to be recorded, must depend upon the question whether or not the statute, when amended, applied to actions existing and pending at the date of such amendment.

That question is not necessarily involved in the objection as made, because if the judgment was admissible for any purpose, or as to any part of the demanded premises, its admission was proper; and upon the question. as indicated above, we express no opinion.

The instruction asked by counsel for plaintiff in the following language, "I instruct you that the record of the judgment in the case of Judson v. Molloy, against Dalton, given in evidence herein, is no bar to plaintiff's recovery herein," was properly refused, for the reason given in disposing of the admissibility of the judgment as evidence.

We think the objection of plaintiff to the introduction of the affidavit to E. A. Lawrence should have been sustained. It was introduced to show that there was no fraud in the entry of the former judgment.

Its introduction, however, could not injure the plaintiff, for the reason that in the present action of ejectment a collateral attack upon that judgment could not be made. Being fair upon its face, and rendered by a court of competent jurisdiction in a proper case, it must stand until set aside by some direct proceeding for that purpose. (Freeman on Judgments, sec. 334.)

It follows that the affidavit could cut no figure under the pleadings in the determination of the cause, and the judgment should not be reversed on account of this

error.

The deed from Dalton and wife to Burr and Dean, dated January 29, 1872, was properly admitted in evi

dence. It was a deed of trust, given to secure the payment of money, but it conveyed the legal title. (Koch v. Briggs, 14 Cal. 256; Grant v. Burr, 54 Cal. 298; Bateman v. Burr, 57 Cal. 480; Durkin v. Burr, 60 Cal. 360.)

It was therefore admissible to show title out of Dalton and wife prior to their conveyance of June 15, 1867, to plaintiff.

The question of the payment of the money which the trust deed was given to secure, and of a reconveyance, did not affect the admissibility of the deed, but were questions to be determined upon proper testimony, and were, as we think, properly disposed of by the court.

The evidence of the payment of taxes by Judson was properly admitted under his plea of the statute of limitations. (Code Civ. Proc., sec. 325.)

We think the evidence of adverse possession on the part of Judson was sufficient to authorize the verdict of the jury; and that, coupled with the other defenses set up and proved, defendants were clearly entitled to the judgment in their favor, and that the record presents no error calling for a reversal.

The judgment and order appealed from should therefore be affirmed.

BELCHER, C. C., and FOOTE, C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment and order are affirmed.

[No. 9018. In Bank. - December 29, 1886.]

PHILIP HEFNER, APPELLANT, v. W. L. URTON,

MORTGAGE

CLOSURE

RESPONDENT.

SUBSEQUENT DECLARATION OF HOMESTEAD

FORE

WIFE IS NECESSARY PARTY WRIT OF ASSISTANCE. Where a married man executes a mortgage, and thereafter files a declaration of homestead on the mortgaged premises, his wife is a necessary party defendant in an action of foreclosure; if she is not made a party, the purchaser at the foreclosure sale is not entitled to a writ of assistance against the husband.

APPEAL from an order of the Superior Court of Sonoma County refusing a writ of assistance.

The facts are stated in the opinion of the court.

Henley & Oates, for Appellant.

J. T. Campbell, and John Goss, for Respondent.

MYRICK, J. In January, 1876, the defendant, W. L. Urton, being the owner of certain premises, executed to the plaintiff a promissory note for two thousand dollars, and a mortgage upon the premises to secure the payment of the note, which mortgage was duly recorded. Urton was a married man, residing with his family on the premises. In April, 1876, Urton made and filed for record a declaration of homestead of the premises mortgaged. The note became due in January, 1877, and in February, 1881, an action of foreclosure was commenced, said W. L. Urton being the sole defendant. A decree of foreclosure was made in March, 1881. At the sale under the decree, the plaintiff became the purchaser, and a deed was executed to him. After the execution of the deed, the plaintiff demanded of defendant that he surrender possession. The demand being refused, plaintiff applied to the court for a writ of assistance. This application was denied, on the ground that the wife was

a necessary party to determine the right to a lien upon the homestead. This is the question for consideration on this appeal.

At the time Urton executed the mortgage, he had full power and authority so to do, and a lien was thereby created; and the subsequent declaration of homestead did not impair the lien. (Civ. Code, sec. 1241, subd. 4.) But in endeavoring to enforce that lien, it was necessary to make parties to the foreclosure all persons who had in the mean time succeeded to any of the rights of the mortgagor in the premises. So, also, any person who claimed an interest in the controversy adverse to the plaintiff, or who was a necessary party to a complete settlement of the question involved, should have been made a party. Urton was the Owner of the premises when the mortgage was executed; by the declaration of homestead, some portion of his title (just what portion is not necessary now to be determined) passed from him. to his wife; he could no longer mortgage or sell unless she joined with him; she had the right of residence thereon with him and the family during their joint lives, with some rights in case she should survive him. She had a right of redemption as his successor in interest. (Code Civ. Proc., sec. 701, subd. 1.) In order to foreclose her interest, and have a complete settlement of the question involved, viz., whether the mortgage was a lien, she was a necessary party. She would have had a right to question the execution or validity of the mortgage; whether it was barred; whether it had been paid.

It will not do to say that the writ was asked for only as to the husband, and that he should not be heard to object; it would be against the policy of the law to aid in separating the family; to remove the husband, leaving í the wife on the premises, and subject him to punishment as for a contempt if he should return to visit her or supply her with food.

We agree with the judge of the court below that the