exercised after a breach of the obligation for which the mortgage is as security.35 35 Mortgage may Confer Power of Sale: Civ. Code, sec. 2932. Cormerais v. Genella, 22 Cal. 116, 123, 124; Bateman v. Burr, 57 Cal. 480, 482; Fogarty v. Sawyer, 17 Cal. 589. See, also, Wilson v. Brannan, 27 Cal. 258, 272. In Godfrey v. Monroe, 101 Cal. 224, 227, 35 Pac. 761, it was said that "this form of security is no longer looked upon with disfavor." But in Sacramento Bank v. Alcorn, 121 Cal. 379, 384, 53 Pac. 813, the court said that "the continuance of this power in a mortgage is as inconsistent with the general policy of requiring all forced sales to be subject to redemption as are trust deeds.' A mortgage conferring a power of sale authorizes the mortgagee to execute a conveyance to the purchaser at the sale without an express provision to that effect, as such authority is necessarily incident to the power to sell: Fogarty v. Sawyer, 17 Cal. 589, 591. An agreement between a movable property mortgagor and his mortgagee permitting a sale of the property in satisfaction of the mortgage otherwise than as provided by law is valid: Harlan v. Ely, 68 Cal. 522, 9 Pac. 947, 949. Agreements Held to be Mortgages with Power of Sale.— "An absolute conveyance of property by a debtor to his creditor, in trust, that he may sell the same, and out of the proceeds discharge the debt, is, in effect, only a mortgage with a power of sale, and the grantee may treat it as such, and, instead of making a sale under the power, may go into a court of equity for a foreclosure and sale under its decree; and whenever such course is pursued, his relation to the property is the same as that of the mortgagee in the foreclosure of the ordinary mortgage': Felton v. Le Breton, 92 Cal. 457, 465, 28 Pac. 490. "Even where there is a power of sale, it has been held that, if the trustee be one of the creditors se 256. Power of Sale Deemed Part of Security. A power to sell immovable property, given to a mortgagee or other encumbrancer in an instrument intended to secure the payment of money, is deemed a part of the security, and vests in any person who, by assignment, becomes entitled to the money so secured to be paid, and may be executed by him whenever the assignment is duly executed and recorded.36 Subdivision 7. Insurance. 257. Mortgage may Confer Power to Insure. A mortgage may confer upon the mortgagee the power to insure the mortgaged property cured, the transaction will be held to be a mortgage": Banta v. Wise, 135 Cal. 277, 280, 67 Pac. 129. A deed given "to secure the payment of an indebtedness" which provided that as soon as the grantees had "received their pay in full . . . . payable out of the receipts of the sale of the conveyed lands. the balance of the property remaining unsold" shall be reconveyed to the grantor, constitutes a mortgage with a power of sale: Godfrey v. Monroe, 101 Cal. 224, 227, 35 Pac. 761. In Southern Pacific R. Co. v. Doyle, 11 Fed. 253, 259, 260, principally in view of Civil Code, section 2932, the circuit court held an instrument conveying property to second parties on a trust to be sold only in case of a default of the first party in the payment of a series of obligations due certain third parties to be a mortgage and not a deed of trust. But see section 414, below. 36 See Civ. Code, sec. 858. upon default of the mortgagor so to do, the premiums paid to be secured by the mortgage.37 Subdivision 8. Interpretation. 258. Mortgage Construed in Connection with Other Related Writings. An instrument of mortgage must be construed together with any written obligation thereby secured, and with other writings contemporaneously made.38 37 Where a mortgage gives the mortgagee such power, the premiums paid to be secured by the mortgaged property, and the mortgagee seeks to foreclose the mortgage for such sums, the complaint must aver (1) failure of the mortgagor to insure as agreed, (2) insurance by the mortgagee conformable to the power, (3) the payment of the insurance money: Washburn v. Wilson, 59 Cal. 538. 38 Note and Mortgage Must be Construed Together: Phelps v. Mayers, 126 Cal. 549, 550, 58 Pac. 1048; Meyer v. Weber, 133 Cal. 681, 684, 65 Pac. 1110. Historical.—In Robinson v. Smith, 14 Cal. 94, before the adoption of sections 385-388 and 390-392 below, an action was permitted on the secured note according to its terms, without reference to the terms of the instrument of mortgage, but this could not be done under the present law. Illustrations of Interpretation. Mortgages foreclosable for the principal sum upon default in payment of interest. Where a note provided for its payment in monthly installments, and was secured by a mortgage in movable property providing "that if the mortgagor should fail to make any payment as in the note provided, the mortgagee may immediately proceed to sell the property in the manner provided by law, and from the proceeds pay the whole amount in such note specified," the mortgagee was entitled to foreclose for the whole amount of all unpaid installments upon any default: Maddox v. Wyman, 92 Cal. 674, 28 Pac. 838; Clemens v. Luce, 101 Cal. 432, 434-436, 35 Pac. 1032; Phelps v. Mayers, 126 Cal. 549, 550, 58 Pac. 1048. See, also, Brickell v. Batchelder, 62 Cal. 623, 630, 631, 633, per Thornton, J., Morrison, C. J., and Myrick and Sharpstein, JJ.; McKinstry, McKee, and Ross, J.J., dissenting. Mortgages foreclosable for interest upon default in payment thereof. A promissory note payable two years after date, with interest thercon payable monthly, when secured by a mortgage providing that "in case of default by the mortgagor in the payment of said note or interest, or in the performance of any of the conditions hereof, then the mortgagee may at its option either commence proceedings to foreclose this mortgage in the usual manner, or cause the said premises, or any part thereof, to be sold," gives the mortgage merely the right to foreclose for interest upon nonpayment thereof, but not for principal before the maturity of the note: Bank of San Luis Obispo v. Johnson, 53 Cal. 99, Crockett, J., dissenting. A mortgage foreclosable "in default of the payment of the note by its terms," and given to secure a note providing that interest is "payable annually," may be foreclosed for the amount of any interest payment remaining unpaid: Yoakum v. White, 97 Cal. 286, 32 Pac. 238. In Brodribb v. Tibbets, 58 Cal. 6, where a mortgage was given as security for the payment" of a certain sum on a certain day, "with interest thereon according to the terms and conditions of a certain promissory note, " which provided that interest was payable monthly, but contained no express provision for foreclosure upon the nonpayment of interest, the court held that the mortgage could not be foreclosed until the principal sum becomes due. Referring to this deLiens-29 259. Ambiguities to be Resolved in Favor of Mortgagor. Any doubt that fairly arises from the terms of the instrument of mortgage and the secured ob cision, the court says, in Yoakum v. White: "This case does not seem to be in harmony with the general current of authority upon the subject; but assuming it to be correct, it is not, as we think, in point here"; in Van Loo v. Van Aken, 104 Cal. 269, 37 Pac. 925: "Certainly that decision was opposed to the current of authority and to the reasonable construction of the Code of Civil Procedure, sections 726-728'; and in Phelps v. Mayers, 126 Cal. 549, 551, 58 Pac. 1048: "Brodribb v. Tibbets is of doubtful authority." Mortgage in no respect foreclosable upon default in payment of interest. A mortgage given "as security for the payment to the said mortgagee of the sum of five thousand dollars in gold coin on the ninth day of December, A. D. 1895, with interest at the rate of eight per cent per annum, according to the terms and conditions of a certain promissory note," which provided that "said interest [was] payable annually, and, if not so paid, the interest to draw interest the same as the principal," is not foreclosable for default of payment of interest, as the language of the mortgage fairly warrants the conclusion that the intention of the parties was that it should not be foreclosed until the principal of the note was due. It cannot be denied that when a mortgagee is bargaining for the right to sell the debtor's land to satisfy his claim, any doubt that fairly arises upon the terms of the note and mortgage should be resolved against him: Van Loo v. Van Aken, 104 Cal. 269, 37 Pac. 925. Interpretation of Reservation as to Homestead.-A mortgage which excepts and reserves to the mortgagor his homestead right and claim in respect to the mortgaged property, although the declaration of homestead was invalid, operates only on the excess of the premises over the statutory exemption of five thousand |