17. Interested Person may Discharge Encumbrance When Due.

At any time after an obligation secured by an encumbrance against any property becomes due, and before a sale which may have been made of the encumbered property in satisfaction of the secured obligation has become final, any person having an interest in the encumbered property whose interest is affected by the encumbrance, or holding a subordinate encumbrance thereagainst, has a right to satisfy such secured obligation, whereupon the property is discharged from the encumbrance whereby the obligation was secured.* 18. Inferior Encumbrancer may in Case of Necessity Satisfy Superior Encumbrance Before Maturity.3

Whenever necessary for the protection of his 2 Carpentier v. Brenham, 40 Cal. 221, 237.

Civil Code, section 2903: "Every person, having an interest in property subject to a lien, has a right to redeem it from the lien, at any time after the claim is due, and before his right of redemption is foreclosed."

Section 2904: "One who has a lien inferior to another, upon the same property, has a right: 1. To redeem the property in the same manner as its owner might from the superior lien"....

But a stranger to the title of a mortgagor-one who claims no subsisting interest under him, and who does not act by his authority-has no right to make a tender of the debt or otherwise intermeddle in the relations created by the mortgage': Hazen v. Nicholls, 126 Cal. 327, 329, 58 Pac. 816.

3 Civil Code, section 2904, last clause, provides:

interests, an inferior encumbrancer may satisfy any superior encumbrance or trust deed in the nature of a mortgage against the property affected by his encumbrance and be subrogated to the benefits thereof.

19. Subrogation of Inferior Encumbrancer to Claim Which He is Compelled to Pay.

An encumbrancer or cestui que trust under a trust deed in the nature of a mortgage, who is compelled to satisfy a paramount claim against the encumbered property for his own protection, may enforce payment of the amount so paid by him as a part of the claim secured by his own encumbrance.5

....

"One who has a lien inferior to another, upon the same property has a right: . . 2. To be subregated to all the benefits of the superior lien, when necessary for the protection of his interests, upon satisfying the claim secured thereby."

So where a pledgee is compelled to satisfy the lieu of a bailee of the pledged property in order to obtain possession thereof, he will be subrogated to such lien as against a subsequent attaching creditor of the pledgor: Rohrbough v. Johnson, 107 Cal. 144, 150, 40 Pac. 37.

4 This provision applies to a superior trust deed: Swain v. Stockton Sav. etc. Soc., 78 Cal. 600, 12 Am. St. Rep. 118, 21 Pac. 365.

5 Subrogation of Inferior Encumbrancer to Claim Paid by Him: See Civ. Code, sec. 2876.

Illustrations.—Sums paid by a mortgagee to extinguish a reclamation district assessment lien are reasonable expenses chargeable to the mortgagor even

20. Subrogation to Security Canceled by Mistake of Fact."

A person holding or acquiring any right in

when the validity of the lien is contested: Weinreich v. Hensley, 121 Cal. 647, 656, 657, 54 Pac. 254.

Where the cestui que trust under a trust deed in the rature of a mortgage is compelled to satisfy street assessment liens and taxes against the trust property, he is subrogated to such liens: Sav. etc. Soc. v. Burnett, 106 Cal. 514, 536, 39 Pac. 922.

Where a mortgage was made by a deed absolute in form, if, while the legal title thus apparently stood in the mortgagee, the mortgagee was obliged to protect his security by paying off other mortgages against the land, equity will give him a lien thereagainst to the extent of the payments: Combs v. Hawes, 8 Pac. 591, 598.

6 Subrogation to Security Canceled by Mistake of Fact.

Rationale. "The principle running through all cases of this class is that when the legal rights of parties have been changed by mistake, equity restores them to their former conditions when it can be done without interfering with any new rights acquired on the faith and strength of the altered condition of the legal rights, and without doing injustice to other persons': Shaffer v. McCloskey, 101 Cal. 576, 581, 36 Pac. 196.

The further principle is also involved in some of the cases that equity will interpose to prevent a merger where it is apparent from the circumstances that it was not the intention of the grantee that a merger should take place; and where it appears to be for the interest of the grantee that there should be no merger of the lesser estate, such will be presumed to be his intention: Carpentier v. Brenham, 40 Cal. 221, 235, 236; Rumpp v. Gerkens, 59 Cal. 496; Scrivner v. Dietz, 84 Cal. 295, 299, 24 Pac. 171; Davis v. Randall, 17 Cal. 12, 16, 17, 48 Pac. 906; Hines v. Ward, 121 Cal. 115, 53 Pac. 427.

The principle of this section is not applicable, however, in cases of mistake of law merely: Guy v. Du Uprey, 16 Cal. 195, 76 Am. Dec. 518, in which the cases of Carr v. Caldwell, 10 Cal. 380, 70 Am. Dec. 740, and Swift v. Kraemer, 13 Cal. 526, 73 Am. Dec. 603, were disapproved.

a void

So a person who advances money upon mortgage without mistake of fact, a portion of which money was used to satisfy a first mortgage upon the same premises, which was thereupon canceled, is not entitled to be subrogated to the rights of the original mortgagee: Guy v. Du Uprey, 16 Cal. 195, 76 Am. Dec. 518; Brown v. Rouse, 125 Cal. 645, 651, 58 Pac. 267. Compare Brown v. Rouse, 104 Cal. 672, 676, 38 Pac. 507.

Tilustrations.-A purchaser at a judicial sale held pursuant to the foreclosure of a superior encumbrance upon certain land, without notice of a subsequent encumbrance upon the same land, as against the holder of such encumbrance with notice of the superior encumbrance, may assert so much of the superior encumbrance as was satisfied by his purchase: Carpentier v. Brenham, 40 Cal. 221.

Where the purchaser of land under an executory contract of sale mortgages his interest therein to a third party, and afterward, upon receiving a conveyance of the property, executes a purchase money mortgage to the vendor in satisfaction of which he subsequently reconveys the property to the vendor, the vendor may, upon the foreclosure of the mortgage executed to the third party, assert the purchase money mortgage as a superior encumbrance, and a merger will not take place: Hawkins v. Harlan, 68 Cal. 236, 9 Pac. 108.

A mortgagee of land who takes a conveyance of the mortgaged land in satisfaction of the secured obligation and thereupon cancels the mortgage, without actual notice of the existence of a second mortgage thereon, as against the second mortgagor with notice of the first mortgage, may assert such mortgage: Brooks v. Rice, 56 Cal. 428; Rumpp v. Gerkens, 59 Cal. 576, 580.

respect to specific property, (a) who satisfies, or (b) the purchase money for whose purchase is used in whole or in part to satisfy, any obligation secured by such property, which security is thereupon canceled of record, without actual notices

A person who without actual notice of the existence of a second mortgage on certain land pays off the first mortgage and takes in consideration thereof a new mortgage upon the same property may assert the first mortgage, although canceled, as against the second mortgagee: Tolman v. Smith, 85 Cal. 280, 285, 286, 24 Pac. 743.

A mortgagee of land who without actual notice of a judgment lien thereon and a sale pursuant thereto satisfies a superior mortgage thereon, which thereupon is canceled, as against the purchaser at execution sale with notice of the existence of the original mortgage at the time of the attachment of the judg ment lien, may assert the original mortgage: Matzen v. Shaeffer, 65 Cal. 81, 3 Pac. 92.

Where, however, the sale is made after the cancellation of the superior mortgage to a person without notice of the equities of the person satisfying the superior mortgage, the purchase will be protected, and the mortgagee may not assert the original mortgage: Richards v. Griffith, 92 Cal. 493, 28 Pac. 484, 27 Am. St. Rep. 156.

A mortgage holder who afterward makes further advances to the mortgagor, and thereupon cancels his mortgage, taking instead a new mortgage for the entire obligation, which mortgage was subsequent to a homestead or trust deed in the nature of a mortgage upon the same property, as against the homestead or trust deed, may assert his mortgage to the amount of the original mortgage: Birrell v. Schie, 9 Cal. 104, 107 (trust deed); Dillon v. Byrne, 5 Cal. 455 (homestead); Himmelmann v. Schmidt, 23 Cal. 117, 120 (homestead). Compare Van Sandt v. Alvis, 109 Cal. 165, 169, 41 Pac. 1014, 50 Am. St. Rep. 25,