The appeal in this case was first considered by the district court of appeal in and for the second appellate district, and the judgment and order appealed from were there affirmed, upon the grounds stated in the following opinion:—

Upon application of the appellants an order was made by this court transferring the cause here for determination. The point which we desired to consider further was whether or not a creditor who causes personal property, subject to a valid mortgage, to be attached without compliance with the requirements of section 2969 of the Civil Code, acquires by the levy of the writ a valid lien, subordinate only to the lien of the mortgage. If this question be answered in the affirmative, it is apparent that the appellant Sinsheimer Brothers, as junior lienor, was entitled to have the plaintiff -limited to the recovery of such advances as he had made under his mortgage prior to the receipt of actual notice of the vesting of the junior lien. (Tapia v. Demartini, 77 Cal. 383, 387 , [ 11 Am. St. Rep. 288 , 19 Pac. 641 ].)

Upon fuller consideration, we are satisfied with the opinion of the district court of appeal upon this point, as upon others discussed by it. Section 2968 of the Civil Code provides that “personal property mortgaged may be taken under attachment or execution issued at the suit of a creditor of the mortgagor.” The following section, entitled “Limitations on right of levy,” provides that “before the property is se taken, the officer must pay or tender to the mortgagee the amount of the mortgage debt and interest, or must deposit the amount thereof with the county clerk or treasurer, payable to the order of the mortgagee.” The two sections are obviously to be read together, and, so read, they provide that the right to attach mortgaged personal property is to be exercised only after compliance with the condition of payment, tender, or deposit of the amount of the mortgage debt. The natural conclusion would seem to be that drawn by the district court of appeal,—namely, that the provisions of the statute requiring tender or payment measure the power of the officer in effecting a legal attachment, and that, without compliance with these requirements, no lien is created by the attempted levy.

To hold that a levy made without first paying or tendering payment of the amount of the mortgage debt creates a valid lien subject to the mortgage debt, necessarily involves the proposition that such levy is a valid and lawful seizure of all the mortgagor’s interest in the property. The property would, on this theory, be held by the sheriff, subject to the mortgagee’s right to enforce his lien against the attaching creditor and the sheriff, to the same extent as he could have enforced it against the mortgagor. The levy would operate only upon the mortgagor’s interest, leaving the rights of the mortgagee unaffected. If the levy of an attachment, such as that in the case at bar, creates a valid lien upon the interest remaining in the mortgagor, it is difficult to see how such levy can constitute any invasion of the mortgagee’s rights. It has, however, been held by this court that an attachment so levied is, as against the mortgagee, a conversion of the property upon the part of the sheriff (Berson v. Nunan, 63 Cal. 550 ; Irwin v. McDowell, 91 Cal. 119 , [ 27 Pac. 601 ]); and this is so, even though the sheriff merely puts a keeper in charge and does not move or otherwise disturb the property. (Rider v. Edgar, 54 Cal. 127 .) These eases, deciding that the levy of the writ confers an immediate right of action upon the mortgagee, necessarily decide that the levy is in itself unlawful. This doctrine cannot be reconciled with the view that such levy is a valid seizure of the interest remaining in the mortgagor or creates any lien whatever.

For these reasons, as well as those stated in the opinion of the district court of appeal, the judgment and order appealed from are affirmed.

Angellotti, J., Shaw, J., Melvin, J., Henshaw, J., and Lorigan, J., concurred.