LONDON & SAN FRANCISCO BANK, Limited, v. DEXTER HORTON & CO., Bankers, et al., 126 F. 593

MORROW, Circuit Judge, after the foregoing statement of facts, delivered the opinion of the court. The appellee acquired its title to the land in controversy during the pendency of the foreclosure suit, but it claims that it is not bound by the judgment in that suit, because it was not made a party to it, and was not made subject to it by lis pendens.

The law of the state of Washington relating to lis pendens, applicable to this case, is as follows: “In an action affecting the title to real property the plaintiff, at the time of filing the complaint, or at any time afterwards, or whenever a writ of attachment of property shall be issued, or at any time afterwards, the plaintiff or a defendant when he sets up an affirmative cause of action in his answer and demands substantive relief at the time of filing his answer, or at any time afterwards, if the same be intended to affect real property, may file with the auditor of each county in which the property is situated a notice of the pendency of the action, containing the names of the parties, the object of the action, and a description of the real property in that county affected thereby.

From the time of the filing only shall the pendency of the action be constructive notice to a purchaser or encumbrancer of the property affected thereby, and every person whose conveyance or encumbrance is subsequently executed or subsequently recorded shall be deemed a subsequent purchaser or encumbrancer, and shall be bound by all proceedings taken after the filing of such notice to the same extent as if he were a party to the action.”

Section 4887, Ballinger’s Ann. Codes & St. Wash. The appellants supposed that a lis pendens was filed at the time of the commencement of the foreclosure suit, but it was only able to show the fact that a lis pendens was filed at a later date, namely, in Kitsap county, where a portion of the lands are situated, on November 23, 1894, and in Mason county, where the remainder of the lands are located, on April 15, 1895.

The appellee admits that it had knowledge of the mortgage and the commencement and pendency of the foreclosure suit after the filing of the supersedeas bond on writ of error in the case of Dexter Horton & Co., Bankers, v. W. P. Sayward, on September 26, 1894. What effect did this notice have upon the rights of the appellee? The mortgage in suit was executed February 8, 1878, and was filed for record and recorded in the proper office on February 21, 1878. The appellee commenced its suit against Sayward on June 6, 1892, and had the lands attached' on June 8, 1892. Judgment was recovered in the suit July 23, 1894.

The lands were levied upon and sold June 26, 1896, the appellee becoming the purchaser at its own sale. The marshal’s deed to the property was issued to the appellee, as purchaser, on December 7. 1898. The foreclosure suit had resulted in a judgment February 17, 1896, or more than five months prior to the time the appellee became a purchaser at its own sale of the property. The appellee was not a purchaser for value at its own sale, and acquired no other interest than that possessed by Sayward, the judgment debtor. Hacker v. White, 22 Wash. 415, 60 Pac. 1114, 79 Am. St. Rep. 945.

Nor was the appellee a purchaser without notice, since it had constructive notice of the mortgage, and actual notice of the foreclosure suit in 1894. It was therefore bound by the judgment. Sampson v. Ohleyer, 22 Cal. 200, 211; Wise v. Griffith, 78 Cal. 152, 20 Pac. 675. The statute relates to the filing of a notice of the pendency of an action, not to a judgment, and it has no relation to a title acquired after judgment. It has never been the law that a notice was necessary to render a judgment effective as against a party claiming title as a subsequent purchaser.

The judgment is a matter of public record, and binds all parties dealing with the property affected by the judgment. Sheridan v. Andrews, 49 N. Y. 478; Black on Judgments, § 550_ _ But, assuming that the appellee became an incumbrancer at the date of the levy of the attachment on June 8, 1892, and that at that time it had no notice of the foreclosure suit, what effect did this have upon the rights of the mortgagee to the attached property?

It is alleged in the bill of complaint that the mortgage was executed on February 8, 1878, and duly acknowledged and certified, under the laws of the then territory of Washington, after its execution,, so as to entitle it to be recorded, and was thereafter, to wit, on February 21, 1878, duly recorded in the proper office in the territory of Washington. This allegation is not denied in the answer, and therefore stands admitted.

The appellee was therefore charged with notice of the existence of the mortgage, and the mortgagee did not lose the lien of the mortgage by reason of the fact that the appellee was not also charged with notice of the pendency of the foreclosure suit. What the mortgagee did fail to accomplish by the foreclosure suit, in the absence of lis pendens, was the foreclosure of the appellee’s equity of redemption acquired by its judgment on July 23, 1894. This result is always recognized in cases where the mortgagor has suffered judgment liens to attach to mortgaged property. A case in point is Stout v. Dye, 103 U.

S. 66, 26 L. Ed. 428. In that case Dye, on November 10, 1873, executed a mortgage upon certain real estate in favor of a bank. The mortgage was recorded on the same day. The bank commenced suit to foreclose the mortgage on January 15, 1876. John W. and Jacob O. Stout brought suit on December 29, 1875, against the mortgagor and his partner, to recover a judgment for a debt. The first day of the next term of the court, was January 4, 1876.

On January 31, 1876, the Stouts recovered a judgment, and on the same day caused an execution to be issued, which on February 1, 1876, was levied upon the lands covered by the mortgage. The effect of the judgment, under the law of the state of Ohio, where the case arose, was to bind the lands of the debtor for the satisfaction of the judgment from the first day of the term of the court at which it was rendered. This was January 4, 1876, or 11 days before the commencement of the suit to foreclose the mortgage.

On February 23, 1876, the holder of the judgment brought suit in the Circuit Court of the United States against the mortgagee to set aside the mortgage as illegal, or, if that could not be done, to have certain alleged' payments of usurious interest applied to reduce the debt. The bank answered the suit of the Stouts, setting up the foregoing facts, which being proved by the agreed statement of the parties, the bill was dismissed. From that decree an appeal was taken to the Supreme Court of the United States.

One of the questions in the case was the relation of.the lien of the judgment, obtained prior to the commencement of the foreclosure suit, to the lien of the prior mortgage in which a judgment of foreclosure was subsequently entered. The court, in discussing this question, said: “That the suit of the hank was one to foreclose a mortgage and that it was actually pending when the judgment lien of the Stouts was acquired, are conceded facts. When the suit was begun, Lye, the mortgagor, represented the entire equity of redemption.

He had parted with no portion of it voluntarily; and if the Stouts had failed to get their judgment during the January term, 1876, of the Circuit Court, no one would claim they were not bound by the decree of foreclosure, although not parties to the suit. Neither could it with any propriety be claimed, we think, that they would not be bound if their lien had only taken effect from the date of their judgment.

It is true, the lien followed by operation of law from a judgment in an adversary proceeding against the mortgagor, and was not created directly by his own voluntary act; but it was the legitimate result of his failure to pay a debt he had incurred, and reached only the equity of redemption, that was being foreclosed in the pending suit. It was in legal effect no more and no less than an incumbrance of the equity of redemption by the mortgagor under the operation of the judicial proceedings which had been instituted against him to enforce the payment of a debt he owed.

As this incumbrance was created pendente lite, there can be no question that it comes within the rule just stated as governing such transfers, unless the rights of the parties are changed because the lien, when created, bound the property, from January 4th, as against other liens and conveyances made by the mortgagor. The inquiry is not as to the extent or validity of the lien, but whether the holder is any less an incumbrancer pendente lite because, although his incumbrance was actually created while the suit was pending, it bound the land, for certain purposes, from an earlier date.

Confessedly, the lien of the bank, if its mortgage was valid, was in any event superior to that of the judgment. The only point in controversy is as to the necessity of making such an incumbrancer a party to a pending suit in order to cut off by a foreclosure his interest thus acquired in an equity of redemption.

No doubt the Stouts, as soon as them judgment was rendered, had a lien on the mortgaged property, which for some purposes antedated the foreclosure suit; hut until they had secured their lien they, would not have been heard to contest the validity of the bank’s mortgage, or the amount that was due on the mortgage debt. If they had been made parties when the suit was begun, they could have done nothing by way of defense to the action until they had acquired some specific interest in the mortgaged property.

As creditors at large they were powerless in respect to the foreclosure proceedings, but when they obtained their judgment, not before, they were in a position to contest in all legitimate ways the validity and extent of the superior lien which the bank asserted on the property, in which, by the judgment, they had acquired a specific interest.” It was held, however, that the judgment of foreclosure was a judgment on the merits, and concluded the parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter -which might have been offered for that purpose.

Citing Cromwell v. County of Sac, 94 U. S. 351, 352, 24 L. Ed. 195. It was accordingly further held that the holder of the judgment was not entitled to maintain his suit to set aside the mortgage, and the decree of the Circuit Court dismissing the bill was affirmed. In the present suit the appellant, holding the judgment in the foreclosure suit, seeks to foreclose the equity of redemption held by the appellee. This it is clearly entitled to do. The only question to be determined is the sufficiency of the defenses interposed by the appellee. These are:

(1) That there was laches, or an abandonment of the foreclosure suit by the complainant therein; (2) that complainant’s rights in the foreclosure suit were barred by the statute of limitations ; (3) that the appellant was not entitled to amend the prayer of its bill in the present suit. No hard and fast rule has been laid down by the courts which can be said to govern all cases wherein the defense of laches is invoked. The lapse of time which might induce the application of the doctrine is not a determined period, but depends upon the circumstances of the particular case.

One principle pervades all cases involving the defense of laches, however, and that is, that not only must there be a seemingly unnecessary delay on the part of the plaintiff in bringing or prosecuting his action, but that, by reason of some change in the condition of relations of the property or parties occurring during the period of delay, it would be inequitable to permit the claim of the plaintiff to be enforced. Galliher v. Cadwell, 145 U. S. 368, 12 Sup. Ct. 873, 36 L. Ed. 738; Halstead v. Grinnan, 152 U. S. 412, 14 Sup. Ct. 641, 38 L. Ed. 495; Wheeling Bridge & T. Co. v. Reymann Brewing Co., 61 U. S.

App. 531, 90 Fed. 189, 32 C. C. A. 571. As defined in the case of Demuth v. Bank, 85 Md. 326, 37 Atl. 268, 60 Am. St.

Rep. 322: “Laches is such neglect or omission to assert a right as, taken in conjunction with lapse of time, more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity. * * * There must be a legal duty to do some act, a failure to do that duty, and attendant circumstances which cause prejudice to an adverse party, before the doctrine of laches can be successfully invoked.” Applying this definition and the principle above stated to the case at bar, what duty has the appellant failed to perform ?

Wherein has the delay alleged in the foreclosure proceedings caused any prejudice >to the appellee? What change in the condition or relations of the parties to the suit has occurred, during the period of alleged delay, which would now make it inequitable to permit the foreclosure of the mortgage in suit? Was there such a delay in prosecuting the foreclosure proceedings as, under the circumstances, could be deemed abandonment of the appellant’s rights? The suit was begun in January, 1882.

Appearances were entered, but the first action in response to the complaint of which we have any record was the demurrer of the defendant Meigs Lumber & Shipbuilding Company in April, 1885, more than three years after the complaint was filed. It is admitted that during this period the complainant was not anxious to vigorously prosecute the action, owing to the expressed views of the judge who would then have heard the case upon certain points involved, but the defendants are silent as to the reason for their delay.

If they desired to place the burden of delay in prosecution or abandonment of suit upon the complainant, why were they not diligent in the filing of their own pleadings ? The answers were not filed until October 4, 1888. The complainant immediately filed motions to strike out certain portions of the answers, and no further delays that could properly be attributed to either party occurred during the course of the suit.

Although the case was not at issue until April, 1895, much of the intervening time was required for legitimate postponements, owing to reconstruction of the courts and attendant circumstances beyond the control of the parties to the suit. It was not at any time claimed by the defendants in that suit, so far as appears by the record here, that the complainant was endangering his rights by dilatoriness in prosecution. It was evidently not so regarded by the court, as judgment was rendered in favor of the complainant.

In our opinion, the record does not support the contention of the appellee that the appellant should be deemed to have abandoned its rights in the foreclosure suit. But has the delay which did occur caused any prejudice to the rights of the appellee ? Suit was not brought by the appellee to protect its alleged rights until January, 1892. It is not contended that the laches of the appellant, if any existed, was later than this, but, in fact, that it was some years prior in time. How, then, could it have injured the appellee before its rights had attached to the property in question?

But if it be said that the appellee’s rights by relation date back to the inception of the lien of the appellee’s assignor, Sayward, by privity of estate, it is only entitled to such defenses as Sayward. may have been entitled to. Sayward did not invoke the defense of laches during the foreclosure proceedings, but contested the suit upon other grounds. . Sayward was personally served in that action, appeared, and contested the suit.

The decree in that suit is binding upon the mortgagor, the Meigs Lumber & Shipbuilding Company, its grantee, Sayward, and all the parties to the action, as to all defenses which were actually urged or which might have been urged in that suit. Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195. Viewed from this standpoint, the appellee is not in position to invoke the defense of laches. The further defense of the running of the statute of limitations in favor of the appellee in respect to the mortgage cannot be sustained.

The judgment obtained in California had the effect of continuing the indebtedness secured by the mortgage. The debt was never barred or extinguished, and, as the mortgage was given to secure the debt, the life of the mortgage was also continued. The life of the mortgage is the life of the debt secured by the mortgage. London & San Francisco Bank v. Bandmann, 120 Cal. 220, 52 Pac. 583, 65 Am. St. Rep. 179; Southern Pacific Company v. Prosser, 122 Cal. 413, 55 Pac. 145; Wilcox v. Gregory, 135 Cal. 217, 67 Pac. 139. The case of Hanna v.

Kasson, 26 Wash. 568, 67 Pac. 271, cited by counsel for appellee, does not, in our opinion, state a different doctrine, as applied to the facts of this case. It appears that in that case a tract of land in the state of Washington was sold and conveyed by the plaintiffs Hanna and his wife in April, 1890, to Thompson, Drum, and Savage, for $18,141, of which sum $1,000 was paid in cash, and a note secured by a mortgage on the land was executed by Savage, payable in two years from date. By agreement of all the parties in interest the deed was made to Savage, who executed the mortgage to the plaintiffs.

The note was not paid at maturity, and suit was brought by the plaintiffs against Thompson, Drum, and Savage to recover the amount due on the note, and interest. Judgment was entered in favor of the plaintiffs. An appeal was thereupon taken to the Supreme Court of the state, and a supersedeas bond in the sum of $40,000 filed on the appeal.

The only question in controversy in that case arose out of the statement in the complaint concerning the guaranty of the defendants Thompson and Drum for the payment of the debt, and whether upon such statement the complaint stated a cause of action against all the defendants, and the allegations of the answer as to a rescission of the contract, to which answer a demurrer was interposed and overruled on June 13, 1893, and judgment in favor of the plaintiffs was entered upon the pleadings. This judgment was affirmed by the Supreme Court. Hanna v. Savage, 7 Wash. 414, 35 Pac. 127, 36 Pac. 269.

The sum of $17,000 was thereupon paid on this judgment by Thompson and the sureties on the supersedeas bond, and on the 28th day of May, 1894, the land involved in the action was sold by the sheriff on execution to satisfy the balance due on the judgment.

At the sale the sureties, through trustees, purchased the land for the amount remaining due on the judgment, and on the same day an agreement in writing was made between the trustees of the sureties and the plaintiffs, which was to The effect that the defendants, other than the defendant Kasson, should execute their notes to the plaintiffs for the balance due plaintiffs on the judgment, payable 12 months from the date of sale, and that the sheriff’s certificate should be assigned to the plaintiffs to secure the payment of the notes, and, if the notes remained unpaid at maturity, the plaintiffs should take a deed from the sheriff to the premises involved, and should have the option to hold the deed in satisfaction of the balance due, or to hold it as a mortgage to secure the payment of the notes.

The notes were given, and the certificate assigned, pursuant to said agreement. In April, 1895, Savage and his wife conveyed the premises involved to Kasson, in payment of a pre-existing debt. Plaintiffs notified the defendants who executed the notes mentioned that they elected to hold the sheriff’s deed as a mortgage. Plaintiffs were placed in possession of the premises, and have ever since remained in possession thereof.

After the conveyance to Kasson, plaintiffs commenced an action to foreclose the sheriff’s deed delivered to the plaintiffs as a mortgage, and the defendant Kasson was made a party to the foreclosure, under the allegation that she claimed an interest in the premises, and that such interest was inferior to the rights of the plaintiffs.

She answered, claiming title under the deed of Savage and wife to herself executed in April, 1895, alleging that at the time the execution sale was made, under the judgment obtained by plaintiffs against Savage, Drum, and Thompson, the property in controversy belonged to the community of Savage and his wife, and that the execution was levied under a judgment which was valid only against the separate property of Savage. Judgment was rendered in favor of the defendant Kasson. On appeal to the Supreme Court, that court, in Hanna v.

Reeves, 22 Wash. 6, 60 Pac. 62, reviewed the previous proceedings in the case, and, speaking of the contention of the plaintiffs that they had the right to revive the original mortgage executed for the purchase price by Savage and delivered to plaintiffs, said: “But plaintiffs abandoned this mortgage. They brought suit upon the note which it was given to secure, and obtained the judgment against the makers of the note, and levied the execution under such judgment upon the property which was included in the original mortgage, and it was sold for a sufficient amount to satisfy the judgment.

By agreement between the plaintiffs and the sureties upon the supersedeas bond in the original action, the sureties purchased the premises, and the sheriff returned the satisfaction of the execution and the notes which were executed for the purchase price by the sureties to the plaintiffs. The original mortgage had thus been abandoned. The debt which it was executed to secure had passed through several transmutations, and did not exist in its original form, and in fact was evidenced by entirely new obligations.” The judgment of the lower court was accordingly affirmed. We now come to the case of Hanna v.

Kasson, 26 Wash. 568, 67 Pac. 271. This was an action brought March 9, 1900, to foreclose the original mortgage as against Kasson, the grantee of the community interests of the original mortgagor and his wife. The complaint asked for a decree enforcing the mortgage lien for the balance claimed to be due the plaintiffs, and establishing said lien as prior to any claim of the respondent in the land. In her answer the respondent set up the record in Hanna v. Reeves as a bar to the action,? and also pleaded the statute of limitations as a defense. The lower court dismissed the action.

On appeal to the Supreme Court, that court held that the record in Hanna v. Reeves was not sufficient to raise the issue of res adjudicata, and with respect to the statute of limitations the court held that there was no longer any right of action upon the note, for that right had been exercised, and that it' was not an action upon the judgment. “The entry of the judgment,” said the court, “could not have the effect to extend the statute of limitations as to a right of action upon the mortgage, because: it was not a voluntary act upon the part of the debtors in the nature of a contract.

The action must therefore be considered as one based alone upon the mortgage as a written contract upon the debt therein described.” The court thereupon proceeded to consider whether the statute of limitations had run with respect to the mortgage as a contract upon the debt therein described, and, in this connection, whether the mortgage had been extended by payments that would bind the respondent, as the grantee of the community interests of the mortgagor and his wife. The court found that the payments aggregating $17,000 were paid by Thompson and the sureties on the supersedeas bond.

Another small payment was found to have been made by the redemption of a small tract of land from the execution sale. It was determined that these payments did not affect the running of the statute as to the respondent, and concluded that the action was barred by the statute of limitations.

It will be observed that in this case the original debt was extinguished by a judgment that was fully satisfied by payments to the plaintiffs and by an execution sale for the balance due; that the plaintiffs thereupon entered into a second agreement with the original debtors, by which they created a new debt, and under which the plaintiffs received the certificate of the sheriff’s sale, and subsequently the sheriff’s deed as security for this new debt. The grantee of the mortgagor was not a party to this new debt, although a party to the pending suit.

Moreover, the plaintiffs entered into the possession of the property under the sheriff’s sale and deed. By these proceedings the original debt was not revived by the judgment, but, on the contrary, the judgment fully discharged and extinguished that debt, leaving nothing but the mortgage contract remaining, and against this contract the statute of limitations had unquestionably run in favor of the respondent when the foreclosure suit was brought. The case at bar presents a very different state of facts. The original debt has never been discharged or extinguished.

No execution was ever issued upon any of the judgments obtained in California. Those judgments merely served to vitalize the original debt for successive statutory periods dating from the time of the original acknowledgment or promise, and the supplemental bill of complaint filed in the foreclosure proceeding on January 8, 1894, did not state á new cause of action, but merely informed the court as to the proceedings which had resulted in continuing the debt. There was, therefore, no suspension of the mortgage lien, and no time when the statute of limitations could commence to run in favor of the appellee.

As to the defense urged that, by reason of the merger of the debt evidenced by the notes in the judgments recovered in California, the mortgage security was waived or destroyed, as the law of California did not permit separate actions upon the note and mortgage simultaneously, it is sufficient to say that such law has no extraterritorial effect, and does not apply to the action to foreclose a mortgage upon land in the state of Washington. Moreover, that defense was pleaded in the supplemental answer of Sayward, the grantor of the appellee herein, in the foreclosure suit in the state court.

That suit passed to judgment, and it was there found, as a conclusion of law, that: “The judgments in the courts of California were not, and did not operate as, an extinguishment, merger, or waiver of the security of the mortgage. The mortgage remains valid and effectual as a security for the debts represented by the notes.

The statute of California regarding an action for the 'collection of a debt secured by a mortgage does not debar or affect an action on the notes and mortgage brought in the courts of said territory before an action on the notes in California, nor does it affect in any way the plaintiff’s or the bank’s remedial rights in this state.” From this judgment an appeal was taken by the defendants in that case, the Meigs Lumber & Shipbuilding Company and W. P.

Sayward, to the Supreme Court of the state, and on motion of counsel for the complainant in that case (the appellant in this case) that appeal was dismissed, and the judgment became final and binding upon the appellee as the grantee of Sayward. The court below denied to the appellant permission to amend the prayer of its complaint, after the filing of the memorandum of decision, by adding an alternative clause praying for a decree of general foreclosure. This action of the court is assigned as error.

An amendment to the prayer was not necessary to obtain the relief sought by the appellant, as, though the- specific relief sought was strict foreclosure, the bill also contained a prayer for general relief, and under this prayer a decree for a foreclosure sale is appropriate, if the case presented warrants such relief. Sage v. Central R. R. Co., 99 U. S. 334, 25 L. Ed. 394. The appellee, under the name of Dexter Horton & Co., Bankers, a corporation, holds the legal title to the lands described in the appellant’s bill of complaint.

This title, as has been stated, was acquired by the appellee by purchase at a judicial sale made June 26, 1896, under a judgment entered in the United States Circuit Court for the District of Washington on July 3, 1894. The lien of this judgment had its origin in an attachment levied January 8, 1892. In this action the appellee, under the name of Dexter Horton & Co., Bankers, was the plaintiff, and W. P. Sayward was a defendant.

While this action was in progress in the United States Circuit Court, the appellant’s assignor was prosecuting his action in the state court to foreclose his mortgage lien, upon the same lands. In that case Dexter Horton & Co., a copartnership, and W. P. Sayward, were defendants. This action resulted in a judgment of foreclosure and sale on February 17, 1896, and at the sale made on August 12, 1896, in pursuance of this judgment, appellant’s assignor became the purchaser of the lands.

In the present action Dexter Horton & Co., Bankers, a corporation, is made a party defendant, and it is alleged in the bill of complaint that the corporation of Dexter Horton & Co., Bankers, is the successor by assignment of the former partnership of Dexter Horton and Arthur A. Denny, copartners as Dexter Horton & Co., who were made defendants in the former suit.

This allegation of the bill of complaint is denied by the answer of Dexter Horton & Co., Bankers, and, although certain transactions are set forth which it is alleged resulted in the judgment obtained by the corporation against Sayward, it is by no means clear that the corporation of Dexter Horton & Co., Bankers, is not the successor in interest in these proceedings of the former firm of Dexter Horton & Co., partners, and by reason of that relation bound by the judgment in the foreclosure suit. But it is not necessary to determine that question.

If the appellee, Dexter Horton & Co., Bankers, the corporation, is not standing in the shoes of Dexter Horton & Co., the copartnership, defendants in the foreclosure suit, it is at least standing in the shoes of Sayward, the grantee of the mortgagor, holding a title subject to the lien of the mortgage, but, by reason of the fact that it was not a party to the foreclosure proceedings, an equity remains in the mortgagee to have the proceedings completed by a second foreclosure. 2 Jones on Mortgages, § 1679; Johns v. Wilson, 180 U. S. 440, 450, 21 Sup. Ct. 445, 45 L. Ed. 613.

In California, where the mortgage under consideration was executed, and in the state of Washington, where it is being enforced, the law is that a mortgage does not convey the legal title for any purpose, either before or after condition broken. It is a mere security for the payment of money, and passes no estate in the land. McMillan v. Richards, 9 Cal. 365, 70 Am. Dec. 655; Johnson v. Sherman, 15 Cal. 287, 76 Am. Dec. 481; Goodenow v. Ewer, 16 Cal. 461, 76 Am. Dec. 540; Fogarty v. Sawyer, 17 Cal. 589; Dutton v. Warschauer, 21 Cal. 609, 82 Am. Dec. 765; Dane v. Daniel, 23 Wash. 379, 63 Pac. 268.

A foreclosure suit under this law results only in a legal ascertainment of the amount due on the mortgage, and a decree directing the sale of the premises for its satisfaction, the surplus, if any, going to subsequent incumbrancers or the owner of the premises, and execution follows for any deficiency.

The appellee obtained a judgment against the grantee of the mortgagor, and has enforced an execution sale of the mortgaged property under the judgment; and, having become a purchaser at the execution sale, it has acquired the right of redemption, which may be extinguished by a second foreclosure and sale of the premises under the present bill.

The bill alleges, among other things, in substance, that the interest of the defendant Dexter Hórton & Co., Bankers, in the mortgaged property was not, for the reasons therein set forth, bound by the foreclosure judgment, but was at all times subordinate to the mortgage lien, and was acquired with notice of its existence; and the main, if not the sole, object of the bill, is to foreclose that defendant’s outstanding equity of redemption. The bill was so framed as to cover that object, and the prayer for general relief embodied in it admitted of that relief being granted.

The defendant Dexter Horton & Co. could not, therefore, have been taken by surprise, but had full opportunity to make whatever defense it had to the suit. The relief to which we think the appellant is equitably entitled, and which is here awarded it, is in our opinion not without, but clearly within, the scope of the bill upon which the suit rests.

That part of the decree of the Circuit Court adjudging that the appellant had an equitable lien upon the land described in the bill of complaint for the sum of $11,015.47, the amount of the advances for payment of taxes thereon, with interest to the date of the decree, is affirmed. The remainder of the decree is reversed, with instructions to enter a decree for the foreclosure and sale of the lands described in the bill of complaint, and providing that the appellee shall have the right of redemption as the successor in interest of the mortgagor.