the encumbrance thereagainst by which such obligation was secured.10

86. Extinction by Wrongful Dealing with Property.

An encumbrance dependent on possession is not lost by a failure to comply with a reasonable demand for specification of the amount claimed to be due,11 nor by an honest, though mistaken, claim of ownership of the encumbered property made by the encumbrancer thereof, the claim, however, being afterward abandoned;12 but,

10 Civil Code, section 2910, provides: "The sale of any property on which there is a lien, in satisfaction of the claim secured thereby, or in case of personal property, its wrongful conversion by the person holding the lien, extinguishes the lien thereon."

Thus a judgment lien is extinguished by the sale of the liened property in satisfaction thereof: Pollard v. Harlow, 138 Cal. 390, 71 Pac. 454.

11 Failure to Specify Amount Due.-The remedy of claim and delivery is therefore improper, but an action to compel an accounting, and the discharge of the lien upon its satisfaction might be maintained. "While it would be eminently proper to amend our code so as to require parties claiming specific liens upon personal property dependent on possession to give, upon reasonable demand, a specification of the amount or sum claimed to be due, and for which the lien is claimed, under penalty of a waiver of the lien for refusal, it cannot be said that such is the law in this state': Sutton v. Stephan, 101 Cal. 545, 548, 549, 36 Pac. 106.

12 Honest Claim of Ownership.-There is this limitation however, that if one who claims as owner is

otherwise, the retention of the property on any ground inconsistent with the existence of the lien, or other wrongful conversion 13 thereof, extinguishes the encumbrance.14

afterward proved to have but a lien, he shall not thereafter be deprived absolutely of his lien if his claim was honestly, though mistakenly, entertained and pressed; but before he can be allowed his lien he must abandon the false claim of ownership: Williams v. Ashe, 111 Cal. 180, 185, 43 Pac. 595; Brittanu v. Oakland Bank of Savings, 124 Cal. 282, 288, 71 Am. St. Rep. 58, 57 Pac. 84.

13 Wrongful Conversion.-Compare Civ. Code, sec. 2910, cited note 10 above.

Any exercise of dominion over the property of another in defiance of the other's rights is a conversion thereof: Loughborough v. McNevin, 74 Cal. 250, 255, 5 Am. St. Rep. 435, 14 Pac. 369.

A pledge is thereby extinguished: Loughborough v. McNevin, above.

14 Retention.-A lienor who refuses, upon proper demand, to deliver property without setting up his lien thereon, or who bases his refusal upon a claim other than that of lien, is estopped from setting up his lien as a defense in an action to recover possession of the property: Lehmann v. Schmidt, 87 Cal. 15, 20, 21, 25 Pac. 161; Kullman v. Greenebaum, 92 Cal. 403, 407, 27 Am. St. Rep. 150, 28 Pac. 674; Sutton v. Stephan, 101 Cal. 545, 36 Pac. 106; Williams v. Ashe, 111 Cal. 180, 184, 185, 43 Pac. 595; Brittan v. Oakland Bank of Savings, 124 Cal. 282, 287, 288, 71 Am. St. Rep. 58, 57 Pac. 84.

"When a tender is made to a pledgee, and he makes no objection to the amount, but does not surrender the pledge nor accept the tender, the result is to extinguish the lien and amounts to a wrongful conversion, even though the tender in fact is less than the amount that may be due the pledgee. It is his duty to make known his objections, and, failing to do so, the tender must be deemed to have been the full amount due, and

87. Surrender of Property Extinguishes Encumbrance.

An encumbrance dependent on possession is extinguished by the surrender of the property subject thereto.15

88. Extinction as to Third Parties by Voluntary Restoration of Property.

The voluntary restoration of property to its owner by the holder of an encumbrance for security thereagainst, dependent on possession, extinguishes the encumbrance as to such property, unless otherwise agreed by the parties; and extinguishes it, notwithstanding any such agreehis refusal to surrender the property is a wrongful conversion': Latta v. Tutton, 122 Cal. 279, 283, 68 Am. St. Rep. 30, 54 Pac. 844.

A warehouseman waives his lien for charges by a statement in reply to an offer to pay such charges that such warehouseman has no charges: Blackman v. Pierce, 23 Cal. 508.

15 Surrender of Property Extinguishes Encumbrance. The lien of a carrier is lost by the surrender of the article subject thereto to a sheriff on attachment. And a subsequent resumption of possession of the property under a void judicial sale does not put the lienor in a position to resume his lien: Wingard v. Banning, 39 Cal. 543, 549.

A pledgee who surrenders the pledged property to be sold at a void judicial sale and buys it thereat loses the security; and the sale being void, no right to the possession was gained by the purchase thereunder: Latta v. Tutton, 122 Cal. 279, 283, 68 Am. St. Rep. 30, 54 Pac. 844.

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, wher 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,