barred by lapse of time, which mortgage has been renewed by a writing executed with the formalities required in case of the execution of a case of the execution of a mortgage. Where the new promise is made after the bar of the statute has accrued, the action is based on the new promise. Wells v. Harter, 56 Cal. 342; London and San Francisco Bank v. Bandmann, 120 Cal. 220, 223, 224, 65 Am. St. Rep. 179, 52 Pac. 583; Weinberger v. Weid*man, 134 Cal. 599, 600, 66 Pac. 869. See, also, Southern Pacific Co. v. Prosser, 122 Cal. 413, 417, 418, 55 Pac. 145; Conway v. Supreme Council Catholic Knights, 137 Cal. 384, 70 Pac. 222, 224.

Historical.-Before the adoption of the code, a mortgage could be renewed by the acknowledgment of the owner of the property to be charged without the formalities required in the execution of the mortgage, the same as it can now be continued: Lord v. Morris, 18 Cal. 482, 490; McCarthy v. White, 21 Cal. 495, 82 Am. Dec. 754. See, also, Heinlein v. Castro, 22 Cal. 100, 102.

Rationale of Renewal.-"The moral obligation growing out of the original liability is sufficient to sustain the new promise to pay . . . . the debt barred by the statute; and doubtless this is the more consistent theory upon which the new promise can be sustained, and this does

away with the solecism of a supposed subsisting debt without legal liability; for the idea that the debt still subsists can only mean that the moral obligation still continues; for, in law, the debt is not recog nized as subsisting, except as a valid consideration for a new promise, and the moral obligation is sufficient for that, and is universally recognized as the ground upon which the new promise is sustained. . . . . The moral obligation to pay the debt does not depend at all upon the question whether we consider the debt itself barred by the statute, or only the remedy, but upon the fact that the debtor has received and the creditor parted with the consideration for

mortgage28 and signed by every party to be charged thereby,29 must be commenced within four years after such renewal.

396. Expiration of Time for Commencing Ac tion is Affirmative Defense.

That the time within which an action can be commenced has expired is a plea in bar of such action which must be asserted30 by the mortgagor or any person deriving any right in respect to the encumbered property from him,81 or otherwise is deemed to be waived.

the debt, that it has never been in fact paid, and that in foro conscientiae it ought to be paid, notwithstanding the bar': Chabot v. Tucker, 39 Cal. 434, 437, 438. 28 Formalities of Execution of Mortgage: See section 242, above.

29 Signed by Every Party to be Charged: See section 394, note 24, and section 8, above.

30 Must be Asserted, or is Deemed to be Waived: Grattan v. Wiggins, 23 Cal. 16, 25.

31 Persons Who may Assert This Defense.

Junior mortgagees: Lord v. Morris, 18 Cal. 482, 491; Lent v. Shear, 26 Cal. 361, 365, 366; California Bank v. Brooks, 126 Cal. 198, 200, 59 Pac. 302.

Bona fide purchasers for value of the mortgaged property: McCarthy v. White, 21 Cal. 495, 82 Am. Dec. 754; Grattan v. Wiggins, 23 Cal. 16, 25; Jeffers v. Cook, 58 Cal. 147, 151.

Purchasers at foreclosure sale of subordinate encumbrances may intervene and assert it: Coster v. Brown, 23 Cal. 142.

The wife of a mortgagor who after the execution of the mortgage declared a homestead upon the mortgaged property: Hefner v. Urton, 71 Cal. 479, 12 Pac. 486; Watts v. Gallagher, 97 Cal. 47, 51, 31 Pac. 626.

397. Receiver may be Appointed when Security Precarious or Insufficient.32

A receiver may be appointed by the court or judge thereof in which a foreclosure action is pending when it appears

(1) that the mortgaged property is in danger of being lost, removed, or materially injured, or (2) that the condition of the mortgage has not been performed, that the rents and profits of the property are subject to the mortgage, and that the property is probably insufficient to discharge the mortgage obligation.33

32 See Code of Civil Procedure, section 564, subd. 2. The court has no power to appoint a receiver except as provided for by statute. The parties cannot confer such jurisdiction by stipulation: Scott Hotchkiss, 115 Cal. 89, 94, 47 Pac. 45; Baker v. Varney, 129 Cal. 564, 79 Am. St. Rep. 140, 62 Pac. 100.

V.

33 The Code reads: "That the condition of the mortgage has not been performed, and that the property is probably insufficient to discharge the mortgage debt." (It was applied in Societe Francaise v. Selheimer, 57 Cal. 623, and Montgomery v. Merrill, 65 Cal. 432, 4 Pac. 414.) But in Locke v. Klunker, 123 Cal. 231, 235-238, 55 Pac. 993, the court pointed out that although the mortgaged property was probably insufficient to satisfy the secured obligation, in the absence of a provision in the mortgage by which it was to include the rents and profits, the court was not authorized to appoint a receiver. And in other cases it is held that the receiver could not be appointed in the absence of such an agreement, as the estate remains in the mortgagor in his character of owner, and must continue to remain so, with all the incidents of ownership, until by a foreclosure and sale a new Liens-41

398.

Attorney's Fee When Allowable to be
Fixed By Court.34

Where a mortgage secures an attorney's fee to be paid the mortgagee in case of foreclosure,

owner is substituted: Guy v. Ide, 6 Cal. 99, 65 Am. Dec. 490; San Jose etc. Bank of Sav. v. Bank of Madera, 121 Cal. 543, 54 Pac. 85; Baker v. Varney, 129 Cal. 564, 79 Am. St. Rep. 140, 62 Pac. 100.

Likewise, during the period of redemption, although the mortgagor is insolvent, the purchaser of land has no right to have a receiver of the rents and profits of the land appointed, but is restricted to an action to recover them: West v. Conant, 100 Cal. 231, 34 Pac. 705. See sections 167 and 324, and 285 through 287. Contra, Shores v. Scott River Co., 21 Cal. 135.

In Bank of Woodland v. Stephens, 137 Cal. 458, 70 Pac. 293, where a receiver had been appointed of the rents, income and profits of mortgaged land during the pendency of the foreclosure action, the question of the regularity of the appointment was not raised.

34 Stats. 1873-74, p. 707, c. 474, effective March 27, 1874, entitled "An act to abolish attorneys' fees and other charges in foreclosure suits," provides: "In all cases of foreclosure of mortgages the attorneys' fees shall be fixed by the court in which the proceedings of foreclosure are had, any stipulation in said mortgage to the contrary notwithstanding." In view of its title, this act is construed to refer to attorneys' fees provided for in the mortgage, and to have no application where none are provided. The act merely gives the court power to fix the fee at any sum not exceeding the amount stipulated for by the mortgagee; it cannot allow a fee greater than that amount: Monroe v. Fohl, 72 Cal. 568, 14 Pac. 514; Hewitt v. Dean, 91 Cal. 5, 14, 27 Pac. 423; Hotaling v. Monteith, 128 Cal. 556, 61 Pac. 95.

Compare Hildreth v. Williams (Cal.) 33 Pac. 1113. See, also, Alden v. Pryal, 60 Cal. 215, 220, and Bonestell v. Bowie, 128 Cal. 511, 516, 61 Pac. 78, cited section 260, note 42, latter part, above.

the court on rendering judgment may, at its diзcretion, allow the mortgagee a reasonable sum not exceeding that agreed upon by the parties35 to reimburse him for any special expense actu

This statute was codified by the amendment to Code of Civil Procedure, section 726, effective February 26, 1901, as follows: "In such action the court may, by its judgment, direct the sale of the encumbered 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 court, and the expenses of the sale, and the amount due plaintiff, including, where the mortgage provides for the payment of attorneys' fees, such sum for such fees as the court shall find reasonable, not exceeding the amount named in the mortgage."

Attorney's fees stipulated to be paid are not the cause of action, but, like the costs, a mere incident to it: Carriere v. Minturn, 5 Cal. 432; Monroe v. Fohl, 72 Cal. 568, 571, 14 Pac. 514; White v. Allatt, 87 Cal. 245, 248, 25 Pac. 420.

See section 604 and note, below.

35 The fee is to be fixed by the court at its discretion, not exceeding the stipulated sum: Carriere v. Minturn, Cal. 432; Monroe v. Fohl, 72 Cal. 568, 571, 14 Pac. 514. Compare Gronfier v. Minturn, 5 Cal. 492; Moran v. Gardner, 82 Cal. 96, 101, 23 Pac. 6; Woodward v. Brown, 119 Cal. 283, 309, 63 Am. St. Rep. 108, 51 Pac. 2.

So a stipulation of the parties as to what is a reasonable sum is not controlling: Grangers' Business Assn. v. Clark, 84 Cal. 201, 206, 23 Pac. 1081.

Where an attorney brought an action and tried it, no further evidence of employment is necessary. "The duty of fixing the amount of an attorney's compensation is cast upon the court, and no evidence of the value of services is necessary": Woodward v. Brown, 119 Cal. 283, 309, 63 Am. St. Rep. 108, 51 Pac. 2: Edwards v. Grand, 121 Cal. 254, 257, 53 Pac. 796; Security etc. Co. v. Mattern, 131 Cal. 326, 333, 63 Pac.