"Every building or other improvement mentioned in section 1,183 of this code, constructed upon any lands with the knowledge of the owner, or the person having or claiming any interest therein, shall be held to have been constructed at the instance of such owner or person having or claiming any interest therein, and the interest owned or claimed shall be subject to any lien filed in accordance with the provisions of this chapter, unless such owner or person having or claiming an interest therein shall, within three days after he shall have obtained knowledge of the construction, alteration, or repair, or the intended construction, alteration, or repair, give notice that he will not be responsible for the same, by posting a notice in writing to that effect, in some conspicuous place upon said land, or upon the building or other improvement situated thereon." The language of the section last recited, which treats of buildings and improvements, and of knowledge of the construction, etc., would hardly cover a case like the one now before us. But, however that may be, it is very plain the "owner or person having or claiming an interest" in the lands on which an improvement is erected, is not the person referred to in section 1,186 as having a "lien, mortgage or incumbrance.' The rule noscitur á sociis is clearly applicable to the "person having an interest" of section 1,192. The section provides a mode for binding the "owner" or person having an interest, that is, one having a legal estate less than the fee, or such an equity as may be enforced by securing a transfer of a legal estate. The right of mortgagees and incumbrancers, with reference to those to whom the provisions of the code concede a lien, are fixed and determined by section 1,186. By that section it is in effect provided that the mortgagee, whose mortgage is duly recorded, shall have precedence of any lien arising out of work subsequently done or material subsequently furnished. It is certainly remarkable, if it had been the intention of the code-makers that the recorded mortgage, thus given priority, might be deprived of its priority by the failure of the mortgagee to do an act, imposed upon him by the subsequent conduct of another, that such event should not have been provided for in the section which treats of the relative rights of the laborer or material-man, and other lien-holders, mortgagees or incumbran cers. But it is well settled in this state that a mortgage is merely a lien on, and passes no estate or interest in the mortgaged premises, except for the purposes of taxation: McMillan v. Richards, 9 Cal., 365; Dutton v. Warschauer, 21 Id., 609. In Mack v. Wetzlar, 39 Cal., 256, it was said, a mortgagee has neither jus in re nor jus ad rem, but a mere right to have his debt paid out of the proceeds of a sale of the mortgaged property, unless it should be otherwise paid; that it is a right which will pass by simple assignment, but will in no case pass by a conveyance of the land alone. It is manifest that one having such a right has not "an interest in the lands," on No. 51.-3. which a building or improvement may be constructed, within the meaning of section 1,192 of the code of civil procedure. That section declares no consequence to follow upon a failure, by a person having or claiming an interest in the lands who has obtained knowledge of the "construction, alteration or repair," and who fails to give notice that he "will not be responsible for the same," except that the interest of such person "shall be subject to any lien filed in accordance with the provisions of this chapter," and sold to satisfy the same. It seems sufficiently plain that the section of the code refers to an estate or interest in land which may be sold and conveyed and does not provide that a mere lien shall become "subject" to another subsequent lien, in the sense that the later lien shall acquire precedence over the prior. As the questions we have considered arise upon the findings and decree, it is not necessary to determine whether we have jursdiction of the appeal from the order denying a new trial. That appeal may be dismissed. The appeal from the order denying the motion for a new trial is dismissed. The judgment is reversed and the cause is remanded with direction to the court below to modify the judgment in accordance with the views hereinbefore expressed. Ross, J., and MCKEE, J., concurred. No. 8,474. WATT ET AL. v. WRIGHT ET AL. Department One. Filed December 9, 1884. PLACE OF TRIAL OF REAL ACTIONS-CONSTRUCTION OF CONSTITUTION.-Section 5, article VI, of the constitution of 1879, requiring "that all actions for the recovery of the possession of, quieting the title to, or for the enforcement of liens upon real estate, shall be commenced in the county in which the real estate, or any part thereof affected by such action or actions, is situated," is not retrospective in its operation. Consequently, the superior court of the city and county of San Francisco, as the successor of the district court, has jurisdiction to hear and determine an action for the foreclosure of a mortgage, pending in such latter court at the adoption of the present constitution, although the land affected thereby is situ ated in another county. DEMURRER-MISJOINDER OF DEFENDANTS -IMMATERIAL ERROR.-Where certain persons are made defendants, in an action to foreclose a mortgage, on the ground that they claim some right or interest in the land subsequent to the lien created by the mortgage, and they demur because of their misjoinder, the action of court in overruling such demurrer, although erroneous, will not warrant a reversal, if the court finds that they had not acquired any rights in the mortgaged premises. FORECLOSURE OF MORTGAGE STATUTE OF LIMITATIONS-ABSENCE OF MORTGAGOR FROM STATE. The absence of a mortgagor from the state does not suspend the running of the statute of limitations upon the mortgage as to creditors of the mortgagor, who have obtained attachment liens on the premises subsequent to the mortgage. LEVY OF ATTACHMENT ON UNOCCUPIED LAND-POSTING NOTICES.-An attachment lien upon unoccupied real estate is not created, under section 542 of the code of civil procedure, unless the officer executing the writ posts upon the land a copy of the description of the land, in connection with a copy of the writ of attachment, and of the notice that the land had been attached. APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiffs, and from an order denying the defendants a new trial. The opinion states the facts. J. H. Budd and J. M. Rothchild, for the appellants. Taylor & Haight, and Jarboe & Harrison, for the respondents. MCKEE, J. On the second of October, 1873, the defendant, Wright, mortgaged certain real property situated in Fresno county, to secure payment of a promissory note given, in words and figures, as follows: "SAN FRANCISCO, October 2d, 1873. "On the second day of January, 1874, without grace, for value received, I promise to pay to Messrs. Watt and McLennan, or order, at their office in the city of San Francisco, the sum of four thousand ($4,000) dollars, in United States gold coin, with interest at the rate of one and one-half per cent. per month, payable quarterly in like gold coin. The interest, if not paid as it becomes due, to be added to the principal, and become a part thereof, and bear interest at the same rate. "This note is secured by a mortgage of even date herewith. Watt and McLennan, the promisees named in said note, were a firm, of which Robert Watt, F. P. McLennan and William Watt were members. William Watt died on the sixth of July, 1878. His will was admitted to probate. Robert Watt, David Watt and Emily Watt were appointed executors and executrix thereof; and as such they qualified and entered upon the discharge of their duties. On the fifteenth of October, 1879, they and the surviving partners of William Watt, deceased, brought the action in hand, in one of the late district courts of the city and county of San Francisco, and against the mortgagor and against the other defendants as subsequent and subordinate lien claimants upon the mortgage premises, to foreclose the mortgage. In the action a decree foreclosing the mortgage and barring the subsequent claims of liens upon the mortgage premises was rendered by the superior court of the city and county of San Francisco. From the decree all the defendants to the action except Wright, the mortgagor, appealed, and the questions raised on the appeal by the assignment of errors are: 1. That the superior court had no jurisdiction to try and determine the action. 2. That there was a misjoinder of parties plaintiffs to the action. 3. That the cause of action stated in the complaint against not only the mortgagor, but the other defendants, as subsequent lien claimants, was barred by the statute of limitations. .1. The action was pending in the district court when the constitution of 1879 went into effect. The constitution abolished the district courts; but it provided, by section 3 of article XXII, for the transfer of all proceedings pending therein to the superior courts, and gave to these courts "the same power and jurisdiction over those proceedings as if they had been, in the first instance, commenced, filed or lodged in the superior court." At the same time the constitution required that all actions for the recovery of the possession of, quieting the title to, or for the enforcement of liens upon real estate shall be commenced in the county in which the real estate or any part thereof affected by such action or actions is situated:" Section 5, article VI, Constitution. And it is contended, that, as the mortgaged premises, in controversy, were situated in Fresno county, the superior court of the city and county of San Francisco, acquired no jurisdiction of the action. But as we held in Gurnee v. the Superior Court: 58 Cal., 88; that provision of the constitution was only prospective in its operation; it, therefore, did not apply to actions which were commenced, according to law, in the district courts and were pending there when the constitution went into operation. To such actions when transferred to the proper superior court, according to the requirements of the constitution, the jurisdiction of the superior court attached; and the court was authorized, in the exercise of the jurisdiction granted to it over such actions, to hear and decide them, in the same manner and to the same extent, as it would actions commenced within its own original jurisdiction. 2. The objection that there is a misjoinder of parties plaintiffs was not taken by Wright, the mortgagor-as to him the complaint was taken as confessed; but Webster and Trahern, who were made defendants, upon the ground that they claimed some right or interest in the land subsequent to the lien created by the mortgage, raised the question by demurrer and answer. Their demurrer was overruled and as to them the cause was tried upon their answer; and as the court found that they had not acquired any rights by statutory levy, or judgment lien, upon the mortgage premises, the error, if any, in overruling the demurrer, or in holding that there was no misjoinder of parties plaintiffs, was error without injury. The mortgage debt matured on the second of January, 1874, and the action to foreclose the mortgage was not commenced until the fifteenth of October, 1879-more than five years and nine months after the cause of action accrued. Meantime, however, as the plaintiff alleged, and the court found, as fact, Wright, the mortgagor, on several occasions, temporarily absented himself from the state. These successive temporary absences amounted in all to twenty-two months; during which time the running of the statute of limitations upon the mortgaged debt was suspended as to the mortgagor: Sec. 351, C. C. P.; Rodgers v. Hatch, 44 Cal., 280; and as to him the action was not barred. But if not barred as to the mortgagor, it is contended, that the action is barred as against the other defendants, because the absences of the mortgagor from the state did not suspend the running of the statute of limitations upon the mortgage as to them; and as they had acquired rights in the mortgaged premises by attachment liens subsequent to the mortgage; it was necessary for the mortgagees, in order to avoid the statute of limitations, to bring this action against them, as subsequent encumbrancers or lien claimants, within four years after the cause of action accrued; for, as the statute of limitations commenced to run when the cause of action accrued, its running was not suspended by any disability as against those who were always within the process of the court. The contention is made upon the authority of Wood v. Goodfellow et al., 43 Cal., 185. That was a case in which it appeared three mortgages had been given on the premises; the first was given in June, 1860, on the undivided interest of Goodfellow in the premises; the second, in October, 1860, upon the entire interests in the premises of Goodfellow and the other joint owners; and the third in May, 1862, on the same joint interests. About six months after the execution of the last mortgage, Goodfellow left the state, and never returned. Foreclosures of the last two mortgages were obtained in regular proceedings, to which the first mortgagee was not made a party. Under those decrees of foreclosure the mortgaged premises were sold. On the twelfth of December, 1862, the purchaser went into possession; and, on the thirtieth of March, 1864, conveyed the premises by deed to the Keystone Quartz Mining Company, which entered into possession under its deed, and were in possession on the eleventh of May, 1864, when the administrator of the estate of the first mortgagee (who had died on the fourth of March, 1868) commenced an action against the company and Goodfellow, the mortgagor, to foreclose the mortgage. Goodfellow made no defense. The company pleaded the statute of limitations. And as the company had been, by itself and its grantors, in the actual possession of the mortgaged premises, under a claim of right, which originated in the judicial proceedings upon the subsequent mortgages, for more than five years before the commencement of the action, and more than seven years had run since the cause of action accrued on the mortgage debt, the lower court sustained the plea of the statute of limitations. In affirming that judgment, the late Supreme Court said: "It is the settled doctrine of this court * * * that when third persons have subsequently acquired interests in the mortgaged property, they may invoke the aid of the statute as against the mortgage, even though the mortgagor, as between himself and the mortgagee, may have waived its protection: and we see no difference in princi ple between a suspension of the running of the statute, resulting from an express waiver, and one caused by the voluntary act of the mortgagor, in absenting himself from the State." The doctrine thus announced is made to rest upon the reason that interests in mortgaged premises, acquired subsequently to the mortgage, constitute property; and the owners thereof stand in the same relation to the mortgage upon the property by the original owner, as if their property was bound as collateral security for the payment of the mortgage debt; but the time for the payment of the debt cannot be ex |