APPLICATION for a writ of certiorari. The facts were similar to those in Eureka Lake and Yuba Canal Company v. Superior Court,

ante.

W. C. Belcher, J. K. Byrne, S. M. Wilson and W. T. Wallace, for the petitioner.

S. M. Bliss, Stabler & Byrne, E. A. Davis and I. S. Belcher, for the respondent.

THE COURT. On the authority of Eureka Lake and Yuba Canal Company v. the Superior Court of the county of Yuba, No. 9,122, ante, opinion this day filed, the orders are affirmed.

No. 7,692.

HENDERSON V. GRAMMAR ET AL.

In Bank. Filed January 12, 1885.

CERTIFICATES OF PURCHASE OF SWAMP LAND-MORTGAGE OF.-A purchase at a foreclosure sale, and a sheriff's deed in pursuance thereof, of swamp lands held by the mortgagor under certificates of purchase, passes to the purchaser all the rights of the mortgagor under his contract with the state. If a subsequent incumbrancer of such lands, after an unrecorded assignment to him of such certificates of purchase, acquire the state title, it is his duty to convey the same to the purchaser under the prior mortgage sale. In an action to compel such conveyance, the judgment should not provide for a conveyance only in case the defendant did not pay to plaintiff the amount of his lien.

APPEAL from a judgment of the superior court of San Joaquin county, entered in favor of plaintiff. The opinion states the facts. J. H. McKune and L. S. Taylor, for the appellants.

Byers & Elliott, for the respondent.

MCKINSTRY, J. Jacob and William Morse, paid one-fifth of the purchase price of certain swamp lands, receiving three certificates of purchase from the proper officer, and then conveyed the lands to Nathaniel McTucker. The latter mortgaged them to Jacob Morse, by whom such mortgage and the note it was given to secure were transferred to plaintiff, and subsequently mortgaged the same lands to John McTucker. Nathaniel McTucker assigned, and delivered two of the certificates of purchase to John, and, after the latter's death, assigned and delivered the third certificate to his widow, now Mary Grammar, defendant. Afterwards plaintiff commenced an action to foreclose his mortgage, but failed to make the heirs or representatives of John McTucker parties, although the mortgage to John McTucker had previously been recorded. The assignments of the certificates of purchase bad not been recorded, and the court found plaintiff had no notice of them, when he commen ced his action to foreclose his mortgage. In that action a decree, in the usual form, was entered May 18, 1871.

On the thirteenth September, 1871, defendants herein, alleged heirs of John McTucker, paid to the state the balance of the pur

chase money, surrendered the certificates of purchase and received patents for the lands. Under the foreclosure decree the sheriff sold all the right, title and interest of Nathaniel McTucker to the plaintiff herein, and, no redemption having been had, executed to said purchaser a deed of the lands, bearing date October 1, 1872.

On the former appeal the supreme court said: "Nathaniel McTucker having been the actual holder of the certificate, No. 744, at the time of the foreclosure of plaintiff's mortgage, and the assignments of the other certificates from Nathaniel to John McTucker not having been recorded, the foreclosure of plaintiff's mortgage and the sale thereunder had, under the statute, the same effect upon the title as though the heirs of John McTucker had been parties to the foreclosure proceedings. In this view the only relief which the defendants can have in this action, if any, must proceed upon their rights as junior mortgagees or for expenditures in perfecting the title, and in the present condition of the answer, such relief cannot be had:" 53 Cal., 652.

The record now here discloses the same facts with reference to the certificates and their non-registration, as were before the court on the former appeal.

After the cause went back to the trial court, the defendants amended their answers, and upon the new allegations and proofs in support of them, appellants now claim the court should by its decree, have provided for a redemption by them, as junior mortgagees. The answers were demurred to by plaintiff on the ground that the facts therein stated did not constitute a defense.

There is no averment in the answers that the estate of John Mc-. Tucker has ever been settled or distributed; there is no averment that the defendants, or any of them, are the owners or holders of the notes of Nathaniel McTucker, to secure which the mortgage to John McTucker was made; there is no averment that John McTucker, by his last will and testament, bequeathed the said notes, or the claim by them represented, to defendants, or any of them; nor is there any averment that John McTucker died intestate. The answers do not show that defendants had succeeded to any interest in the notes. or mortgage, or that they had the right to redeem the land from the prior mortgage.

It is contended, however, by appellants that, upon equitable principles, the decree should not have commanded a conveyance of the legal title acquired from the state (on payment of the amount by them advanced), but should have provided for such conveyance only in case the defendants did not-within a reasonable time fixed thereinpay to plaintiff the amount of his lien. But, in the eye of a court of equity, plaintiff is the real owner of the state title. The rights of the mortgagor under the contract with the state passed to plaintiff by his purchase at the foreclosure sale and the sheriff's deed in pursuance thereof. By his purchase and deed he became vested with the title of the mortgagor as against all the world except the successors in interest of John McTucker, and, as against them, he be

came vested with the title of the mortgagor, subject to the lien of his own and the John McTucker mortgage: Carpentier v. Brenham, 40 Cal., 221. As we have seen, defendants failed to allege they had succeeded to the rights of John McTucker as mortgagee.

It cannot be said the mere assignments of the certificates of purchase created liens on the estate of Nathaniel McTucker, but if they did, such liens were foreclosed by the decree in the mortgage suit, because the assignments were not recorded: C. C. P., 726. Plaintiff became the owner of the title of which such certificates were evidence, and from the time he so became the owner it was the manifest duty of defendants to assign the certificates to him. And so, when they acquired the state title, by and through the certificates, it was their duty to convey it to plaintiff. The court required, as a condition to such conveyance, that plaintiff should pay to them the eighty per cent. of the price paid to the state, which they had advanced, expenses, etc., because, if the certificates had been in his possession, he would have been obliged to pay the eighty per cent. to secure the state title. But it was not the duty of the court to permit the defendants to redeem plaintiff's mortgage, since they had not shown that they had the right of redemption.

In this view, it is unnecessary to inquire whether the statute of limitations had run against a bill to redeem by the owner of the second mortgage.

Judgment affirmed.

THORNTON, J., SHARPSTEIN, J., MORRISON, C. J., and Ross, J., concurred.

MCKEE, J., concurring. When the heirs of John McTucker filed their cross-complaint to redeem from the sale under the senior mortgage, by which the title of the mortgagor to the mortgaged premises passed to the plaintiff, they had no right of redemption, because the time of the statute of limitations had run upon all the promissory notes whose payment had been secured by the junior mortgage to John McTucker; and as the rights arising out of said notes and mortgage were not kept alive by any action brought by the mortgagee in his lifetime, or his personal representatives or heirs, after his death, the causes of action upon the notes and mortgage were barred, the mortgage lien was extinguished: Section 2,911 C. C.; Wells v. Harter, 56 Cal., 343; Jeffers v. Cook, 58 Id., 15; and the right to foreclose and the right to redeem were also barred: Morris v. Goodman, 18 Cal., 482; Coster v. Brown, 23 Id., 142; McCarthy vs. White, 21 Id., 195; Espinosa vs. Gregory, 40 Id., 38; Taylor v. McLaine, 60 Id., 651; Arringston v. Liscom, 34 Id., 365; Cunningham v. Hawkins, 24 Id., 403; Siter v. Jewett, 33 Id., 92; Grattan v. Wiggin, 23 Id., 16. Therefore I concur in the judgment.

SURETIES ON BOND OF COUNTY TREASURER-ACTION AGAINST PERFORMANCE OF CONDITIONS BY COMMISSIONERS, How ALLEGED.-In an action against the sureties upon the official bond of a county treasurer, the performance of the duties enjoined upon the county commissioners by the act of February 20, 1851, may be alleged in the manner provided for in section 60 of the civil practice act for pleading the performance of conditions precedent in a An allegation, "that the county commissioners complied with all the requirements and conditions imposed upon them by the terms of the bond and the requirements of all acts of the legislature pertaining to the duty of county commissioners relating to county officers and to their official bonds," is sufficient.

contract.

APPEAL from a judgment of the sixth judicial district court, White Pine county, entered in favor of the defendant. The opinion states

the facts.

H. K. Mitchell, for the appellant.

Baker & Wines, for the respondents.

BELKNAP, J. This action was brought against the sureties upon the official bond of George P. McConkey, as county treasurer of White Pine county, to recover a sum of money for which he was in default. Defendants demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and, under this head, assigned the failure of the plaintiff to set forth a performance of the duties enjoined upon the county commissioners by the act of the legislature, approved February 20, 1881, entitled "an act for the relief of sureties upon official bonds:" Stats. 1881, p. 91.

This act requires the boards of county commissioners to keep each official bond given by an officer of their county with at least two good and sufficient sureties for its whole penal sum; to require a monthly report of receipts and disbursements from each financial officer of their county, to view the public moneys in the custody of the county treasurer at least once in each year, and to make complete annual settlements with such officer in the month of September of each year. If the county commissioners fail in the performance of any of these duties, the law releases and discharges the sureties upon the official bond of the officer from liability, in so far as the county in which he held office is concerned.

It is argued that these provisions of the law are conditions precedent, and that the complaint must show that they have been performed. The complaint does not specifically aver a performance of the several acts required to be performed by the county commissioners, but alleges that the county commissioners of said county of White Pine complied with all the requirements and conditions. imposed upon said commissioners by the terms of said bond and the requirements of all acts of the legislature of the state of Nevada pertaining to the duty of county commissioners relating to county officers, and to the official bonds of county officers, * and then proceeds to state certain matters for the purpose of excusing the annual September settlement not questioned upon this appeal.

*

Section 60 of the civil practice act furnishes an easy mode for pleading the performance of conditions precedent in a contract. It provides: "In pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part." * * The pleader has not employed the precise language of section sixty, but he has used language equivalent to it, and a substantive compliance with the section is all that is necessary.

Respondent contends that this case is not within the provisions of the practice act, and that appellant should have alleged in detail a performance of the various duties required of the county commissioners by the act of 1881, and refers to decisions as supporting this view. In the cases to which we have been referred: People v. Jackson, 24 Cal., 630; Himmelman v. Danos, 35 Cal., 441; and Dye v. Dye, 11 Cal., 163; the right of action depended upon a statute, and it was essential to the statement of a cause of action, that the facts bringing the case within the statute should be averred. But the present action is brought upon a contrct between the defendants and the state. The contract has been changed by the state, through its legislature, consenting that, in so far as counties are concerned, no recovery shall be had upon undertakings of the nature of the one sued upon, unless certain acts be performed by the county through its county commissioners. These new conditions are ingrafted upon the undertaking, and if they are conditions precedent they are well pleaded.

It is not necessary, upon this appeal, to determine whether the provisions of the law of 1881 are conditions precedent, or whether the statute is applicable to undertakings made before its passage. These questions were made by demurrer to the original complaint, but the plaintiff, instead of adhering to his pleading, amended it so as to obviate them, and leave them out of the case. We are of opinion that the amended complaint states a good cause of action. Judgment reversed and cause remanded.