estate of the insolvent; nor is the time within which a foreclosure action might otherwise be brought prolonged thereby.25

be foreclosed, although a claim was not presented against the insolvent's estate. The provisions requiring a mortgage against a homestead of a deceased mortgagor to be presented have no application: Montgomery v. Robinson, 76 Cal. 229, 18 Pac. 261.

25 Time of Commencing Action not Prolonged.The insolvency of the owner of property affected by a mechanic's lien and the rendition of an order stay. ing all proceedings against him does not prolong the time within which an action for the foreclosure of the lien may be commenced: Bradford v. Dorsey, 63 Cal. 122.

CHAPTER 3.

PARTITION OF ENCUMBERED IMMOVABLE PROPERTY.

Subdivision 1. Encumbrancer as a Party in an Action in Partition.

74. Encumbrancer in certain cases only necessary party in action in partition.

75. Procedure when encumbrancer necessary party but not joined.

Subdivision 2. Effect of Partition on Subsisting Encumbrances.

76. Upon partition encumbrance on undivided interest becomes charge exclusively on share of owner of interest.

77. Property ordered sold in action in partition to be sold free of encumbrances.

78

Application of proceeds of sale.

79. Deduction to be made from amount paid on such obligation when also otherwise secured.

80. Encumbrancer who purchases may give receipt in payment of part of purchase money.

Subdivision 1. Encumbrancer as a Party in an Action in Partition.

74. Encumbrancer in Certain Cases Only Necessary Party in Action in Partition.

In an action for the partition of immovable property between the cotenants thereof, the

holder of an encumbrance against any part thereof is a necessary party in case his encumbrance is recorded at the time of the filing for record of the notice of pendency of the action in partition. But all other encumbrancers are deemed to have been notified of the pendency of the action by the filing of such notice, and are not necessary parties in the action.1

75. Procedure When Encumbrancer Necessary Party but not Joined.

Whenever it appears to the court in which an action in partition is pending by the certificate of the county recorder or county clerk, or by the affidavit or verified statement of any person who has examined the records, that any encumbrancer who is a necessary party in the action

1 See Code of Civ. Proc., secs. 754, 755.

Section 754: "No person having a conveyance of or claiming a lien on the property, or some part of it, need be made a party to the action, unless such conveyance or lien appears of record."

Section 755: "Immediately after filing the complaint in the superior court, the plaintiff must record in the office of the recorder of the county or of the several counties in which the property is situated, a notice of the pendency of the action, containing the name of the parties so far as known, the object of the action, and a description of the property to be affected thereby. From the time of filing such notice for record, all persons shall be deemed to have notice of the pendency of the action."

2 See Code Civ. Proc., sec. 761.

has not been duly joined as such, the court must either

(1) order each such encumbrancer to be made a party to the action by an amended or supplemental complaint, or

(2) appoint a referee to ascertain,

(a) whether or not his encumbrance is a subsisting charge against the property, and if subsisting the amount unpaid thereon,

(b) the relative priority of such encumbrance to any other encumbrances against the property affected thereby, and

(c) whether or not the obligation secured thereby is otherwise secured, and if so secured, the nature and extent of the security. In case a referee is appointed, the plaintiff in the action in partition must, a reasonable time. previous to a day to be set for a hearing, cause such encumbrancer to be notified to appear before the referee at a specified place and time on such day to make proof, by his own affidavit or otherwise, of the amount due or to become due contingently or absolutely on the obligation secured by his encumbrance.

3 See Code Civ. Proc., sec. 762, first portion.

Subdivision 2. Effect of Partition on Subsisting Encumbrances.

76. Upon Partition Encumbrance on Undivided Interest Becomes Charge Exclusively on Share of Owner of Interest.

When, in an action in partition, property affected by an encumbrance against the undivided interest of any party to such action is partitioned, the share assigned to such party is primarily chargeable with its just proportion of the costs of partition, and subject to such charge, such encumbrance becomes thenceforth a charge exclusively against such share.4

77. Property Ordered Sold in Action in Partition to be Sold Free of Encumbrances.

The court in which an action in partition is pending must, in case a sale of any of the property affected by such action becomes proper, order the property to be sold free and clear of any encumbrances for security

4 See Code Civ. Proc., sec. 769.

existing there

5 Property to be Sold Free of Encumbrances.Code Civ. Proc., sec. 771: "The proceeds of the sale of encumbered property must be applied... 3. to satisfy and cancel of record the several liens in the order of their priority."

Code Civ. Proc., sec. 787: "The conveyances [by which the property is partitioned] must be recorded in the county where the premises are situated, and shall be a bar against all persons interested in the