
    [No. 7,179.
    Department Two.]
    J. M. BROOKS v. M. J. RICE et al.
    Merger—Mortgage.—A conveyance of mortgaged, premises by a mortgagor to a mortgagee, made in satisfaction of the mortgage, and for the purpose of avoiding the expense of a foreclosure, held, where there was an intervening mortgage, not to operate a merger.
    
    Appeal by the plaintiff from a judgment for the plaintiff, in the First District Court, County of Ventura. Fawcett, J.
    Action to foreclose a mortgage executed by defendant Rice. The Court below found, .that, prior to the execution of the mortgage sued upon, the defendant Rice executed two mortgages upon part of the land to the defendant Beckwith; and that after the execution and recording of the mortgage sued upon, Rice, being unable to pay the interest on the sums due to Beckwith, as it accrued, agreed with Beckwith to convey to him the mortgaged premises in satisfaction of said mortgages, and said Beckwith agreed to surrender up the notes and mortgages in consideration of said conveyance; that, accordingly, the conveyance was made, and the notes surrendered; that when Beck-with took the conveyance he was ignorant of the existence of the intervening mortgage.
    
      Blackstock & Shepherd, for Appellant,
    cited Jones on Mortgage §§ 736, 740.
    
      Bledso & Pettinos, for Respondent,
    cited Jones on Mortgages, §§ 848, 856, 857, 870-873; Millspaugh v. McBride, 7 Paige, 509; Skeet v. Spraker, 8 id. 182.
   By the Court :

The Courtis of opinion that the judgment in this cause should be so modified as to direct the forclosure of the mortgage held by plaintiff as to all the property mentioned in it; that the property embraced in the mortgage of plaintiff, add not embraced in the mortgage to Beckwith, set on foot by the judgment, should be first sold, and the proceeds paid over to the plaintiff, to the extent of his debt and costs, and any surplus remaining, to the defendants, purchasers from the mortgagor. If the proceeds of such s<alc should be insufficient to pay off plaintiff’s mortgage, that then the remaining property embraced in his mortgage should be directed to be sold, and the proceeds of the sale applied to the payment of the mortgage to Beckwith, and if any surplus remains, to the payment of the mortgage of the plaintiff. If anything remains after such payment last mentioned, it should be paid over to the purchasers from the mortgagor.

The cause is remanded, that the modifications above pointed out may be made by the Superior Court of the county of Ventura. The appellant to recover the costs of this appeal.  