ment, as to creditors of the owner and as to bona fide purchasers or encumbrancers for value.16

89. Partial Performance of Secured Obligation does not Release Security.

The partial performance of an obligation secured by an encumbrance does not extinguish the encumbrance upon any part of the property subject thereto, even if it is divisible.17

16 See Civ. Code, sec. 2913; Hewlett v. Flint, 7 Cal. 264; Waldie v. Doll, 29 Cal. 555; Treadwell v. Davis, 34 Cal. 601, 94 Am. Dec. 770; Palmtag v. Doutrick, 59 Cal. 154, 43 Am. Rep. 245.

17 See Civ. Code, sec. 2912.

TITLE 6.

ENFORCEMENT OF ENCUMBRANCES FOR

SECURITY.

CHAPTER 1.

MODES OF ENFORCEMENT.

90. Modes of enforcement of encumbrances.

90. Modes of Enforcement of Encumbrances.

An encumbrance for security only may, when performance of the secured obligation is due, be enforced:

(1) in every case by judicial sale obtained in a foreclosure action, except, perhaps, in case of liens imposed by operation of law where there is another plain and adequate remedy,1

1 Except Where There is Another Adequate Remedy. Where an action was brought to foreclose a mortgage, and a subsequent judgment lienor who was made a party defendant filed a cross-complaint praying for the foreclosure of his judgment lien, and the objection was raised that the judgment lien was not foreclosable, the court said: "The enforcement of liens, whether equitable or statutory, is a well-recognized function of courts of equity; and the only distinction in this respect, between the different kinds of liens is,

(2) in cases of pledge and movable property mortgage (and other movable property encumbrances not otherwise provided for by law), by sale at public auction after actual notice,

(3) in each case by any particular mode of sale prescribed by law, and

(4) where not otherwise exclusively prescribed by law, by a sale in a mode agreed upon by the parties.

that in case of the latter, equity will interpose only where there is no other adequate remedy. . . . In this case ... the respondent [judgment lienor] was

wholly without remedy otherwise than by resort to a court of equity. . . . . The respondent has a specific lien on the property in question, which-so long as the debt is not satisfied-he is entitled to enforce. But were there any doubt of the right of the judgment creditor, in the absence of other remedy, to maintain an independent action to foreclose his lien, there can be none of his right to relief in a suit brought against him to foreclose a prior lien": Hibernia Sav. etc. Soc. v. London etc. Fire Ins. Co., 138 Cal. 257, 71 Pac. 334.

91. Nature of Foreclosure Action.

A foreclosure action is only a proceeding for the legal determination of the existence of an encumbrance, the ascertainment of its extent, the subjection to sale of the property hypothecated, and the application of the proceeds of the sale to the satisfaction of the secured demand.1

1 Nature of Foreclosure Action Stated: Boggs v. Hargrave, 16 Cal. 559, 563, 76 Am. Dec. 561; San Francisco v. Lawton, 18 Cal. 465, 473, 474, 79 Am. Dec. 187; Savings etc. Soc. v. McKoon, 120 Cal. 177, 180, 52 Pac. 305. See, also, Bostwick v. McEvoy, 62 Cal. 496, 501, 502.

The foreclosure of a mortgage embraces the sale of the property and the execution of the sheriff's deed, as well as the judgment of the court, and is not complete until after the expiration of the period of redemption: Goldtree v. McAllister, 86 Cal. 93, 105, 24 Pac. 801.

92. Is Proceeding in Equity.

An action to foreclose an encumbrance for security is a proceeding in equity.2 Thus a foreclosure action must be commenced in the superior court irrespective of the amount of the secured demand, and no party to the proceeding is entitled as of right to a trial by jury.3 When the secured demand amounts to less than three hundred dollars, such court cannot, in case the encumbrance fails, render a personal judgment

But an action to foreclose a mortgage is not the occasion for determining the extent of the mortgagor's interest in the mortgaged property: Ramsbottom v. Bailey, 124 Cal. 259, 262, 56 Pac. 1036. See, also, section 99, below.

By Code of Civil Procedure, sections 1198 and 1199, the usual rules of practice and concerning new trials and appeals are made applicable in actions for the foreclosure of immovable property improvement (mechanics') liens. For the procedure before the enactment of the code, see Stats. 1855, c. 130, sec. 8; Stats. 1856, c. 134, sec. 7, amended 1858, c. 270, sec. 4; Stats. 1861, c. 431; and Stats. 1867-68, c. 448, sec. 10, first and fourth subdivisions.

2 Is Proceeding in Equity.-When the amount of the encumbrance is less than three hundred dollars, the superior court has jurisdiction on the ground that a foreclosure action is a proceeding in equity: Miller v. Carlisle, 127 Cal. 327, 329, 59 Pac. 785. See, also, Brock v. Bruce, 5 Cal. 279.

3 Not Entitled as of Right to a Jury Trial: Curnow v. Blue Gravel Co., 68 Cal. 262, 264, 9 Pac. 149 (case of mechanic's lien).