Fritz

This is an appeal by the defendants, Laura J. E. Mills and Frederick J. Mills, from a judg ment rendered in favor of the plaintiff, Mary A. Fritz, subrogating plaintiff to the rights of a mortgagee and awarding judgment against the defendants for the amount of the lien,° with the usual decree of foreclosure and order of sale. This is the third appeal of this action and a recital of the history of the litigation seems necessary in order to clearly state, and afterward to intelligently discuss, the points raised on this appeal.

The action was commenced on October 31, 1906, by Charles Wesley Reed, to compel the specific performance by the defendants of a contract for the sale to Reed of certain real property situate in the city of San Francisco, which, at the time, was mortgaged to the Mechanics Building & Loan Association for the sum of $5,000. On October 24, 1907, the mortgagee commenced foreclosure proceedings. On May 19, 1908, the present plaintiff, Mary A. Fritz, was in the action at bar, substituted as party plaintiff in the place of Reed. On May 18, 1908, pursuant to an interlocutory judgment to the effect that it would be equitable for plaintiff to deposit with the clerk of…