Carpentier

— On the former appeal in this ease (Carpentier v. Brenham, 40 Cal. 221 ) it was decided that notwithstanding the foreclosure of the mortgage to Moss and the sale under it, a court of equity will deem it to be still subsisting and unsatisfied, so far as may be necessary for the protection of the purchasers at the foreclosure sale, as against the junior mortgage to Catherine Hays; and that the only remedy of the junior mortgagee is a bill to redeem from the prior mortgage. This ruling has become the law of the case, and its correctness or incorrectness is not open to review on this appeal. Correctly assuming these propositions to have been settled, the defendants contend that the complaint has none of the characteristics of a bill to redeem, and was, therefore, properly dismissed. But we do not regard it in so narrow a light. Whilst not strictly and in a technical sense a bill to redeem, it is nevertheless capable of the necessary amendment, without materially changing the nature and scope of the action, and the plaintiff would be permitted to amend, if the ends of justice require it. We shall, therefore, for the purposes of this ap *814 peal, treat the complaint as sufficient to…