Both of these cases present the same issues, were heard on the same evidence, and have been brought here on appeal in one transcript.

In 1885 plaintiff leased to William Foster certain lands for the cropping season of 1885-86, and took from him a mortgage on the growing crop to secure the payment of the rent. By the terms of the mortgage the plaintiff “ had the right to enter upon the leased premises, and to cut and harvest said crop, thrash, sack, remove, and sell the same, and out of the proceeds of such sale to retain, first, all cost and expenses incurred in cutting, harvesting, thrashing, sacking, removing, and selling said crop, and, also, to retain out of such proceeds the principal and interest secured by said chattel mortgage.”

The mortgage was duly executed and recorded, and *181 defendants had actual notice of its existence. After the execution and recordation of the mortgage, and before the crop was harvested, Foster purchased certain articles of personal property from each of the defendants, and promised to pay for the same in hay at ten dollars per ton. When the crop was ready for harvesting, the plaintiff did not avail himself of the privilege set forth above, but permitted Foster to harvest the crop and prepare it for market. The defendant McRae received from Foster 90,225 pounds of hay, and defendant Pratt received hay amounting in value,.at ten dollars per ton, to $319.32; but the amount due each defendant from Foster was greater than the value of the hay each received at ten dollars per ton. On June 14, 1886, the California State Bank held the note and mortgage as collateral security, and at the request of plaintiff, who had heard that Foster intended to sell some of the hay to the defendants, sent a letter to each of the defendants, which was received on the following day, a copy of which follows: —

All of the hay taken by the defendants was part of the mortgaged crop. Foster has paid $673 on the note made by him to plaintiff, and the balance is now due. The correspondence referred to all occurred before any of the hay was removed from the ranch. The defendants credited the account of Foster with the amount each had received from him, and refused to account to *183 plaintiff for any part of the hay. Plaintiff thereupon commenced this action to recover the value of the hay. The court below held that the plaintiff was estopped by her letter of June 21,1886, to Foster, from claiming anything; that she therein authorized Foster to make the sale on his own account, and waived any claim she might otherwise have asserted under the mortgage. And such is the contention of respondents here.

The defendants were charged with notice that the legal title to the hay was in the plaintiff (Berson v. Nunan, 63 Cal. 550 ), and that she could not be divested of her lien through a wrongful removal of the property from the land. (Wilson v. Prouty, 70 Cal. 196 ; Martin v. Thompson, 63 Cal. 4 .) The defendants, as creditors of Foster, could not have taken the mortgaged property under an attachment, without first paying or tendering to plaintiff the amount of the mortgage debt ( Wood v. Franks, 56 Cal. 217 ); and as the lien continued, the taking by defendants was a conversion for which plaintiff has a right of action, unless she is estopped by the letter referred to. (Wilson v. Prouty, 70 Cal. 196 .)

We are unable to give to the letters and acts of the parties the effect which was given to them by the court below. The defendants were notified that if they took the hay they would have to see that the mortgage debt was paid by Foster, or they would be held responsible. The letter of June 21st does not relieve them from this responsibility. The plaintiff evidently considered that the sale to defendants would be an advantageous one to all parties; she would receive the amount due her, and at the same time the mortgagor would obtain a good price for the property, and be enabled thereby to reduce his indebtedness. She did not desire to interfere with the sale, but she did nothing that was inconsistent with her rights, or which tends to show that she intended to waive her right, as mortgagee, or to induce a change of position on the part of the defendants. Foster had writ *184 ten that “ the bank has notified Mr. Pratt and Mr. McRae that -they must not buy anything off the ranch.” This was evidently a misapprehension of the terms of the letter which had been written by the bank, and the plaintifi proceeded, in her letter of June 21st, to correct his error. There is nothing in her letter indicating an intention on her part of permitting the defendants to appropriate her crop without paying the mortgage debt.

There is no merit in the other contention of the respondents. It is not a case of variance, nor was there a failure of proof. It is xvell settled in cases of this kind that a party may waive the tort, and sue in assumpsit for the value of the property. (Lehmann v. Schmidt, 87 Cal. 15 .)

Ho doubt respondents acted in the utmost good faith, and in the belief that they were entitled to the property under the circumstances; but plaintiff cannot be deprived of her property through a mistake of the defendants.

The judgment and order in each case are reversed, and the causes are remanded for new trials.

Harrison, J., De Haven, J., Garoutte, J., and McFarland, J., concurred.