v. Benton, 73 Cal. 329.2) The words "shall be due and payable at once" means just what they say. "Courts can neither make or amend a statute but must enforce it as enacted." (Mills v. La Verne Land Co., 97 Cal. 254.3) The word "shall" is imperative and mandatory. (Washington v. Page, 4 Cal. 388; Pierpont v. Crouch, 10 Cal. 315; People v. San Luis Obispo Co., 50 Cal. 561.)

THE COURT.-The defendant was, at all times named in the complaint, the owner of lands in Reclamation District No. 536. The assessment list, properly made and certified, was filed with the county treasurer of the county of Solano on December 4, 1891, where it remained for more than thirty days, and the assessments not having been paid, the treasurer of said county returned the same on the eleventh day of January, 1892, to the board of trustees of the plaintiff. The trustees, at various times, made calls for installments on the various assessments so made. The defendant paid the first nine calls or installments, but paid only a portion of the tenth and has wholly refused to pay the eleventh. More than twenty days elapsed after the eleventh call before the commencement of this action. The eleventh call was made July 1, 1896. On October 12, 1897, the board of trustees of plaintiff made an order that by reason of the failure of the defendant to pay such calls or installments the whole amount of his said assessment should be due and payable at once and that an action be commenced for the same. This action was commenced in pursuance of said order to collect the balance due by defendant on his whole assessment and to have the same declared a lien upon the real estate owned by him upon which the said assessment was levied. The case was tried before the court; findings filed upon which judgment was ordered and entered in favor of defendant. Plaintiff has appealed from the judgment upon the judgment-roll.

The question here is as to whether or not the judgment is the legal conclusion from the facts found. The court found: "That on January 21, 1893, the said board of trustees, by an order duly entered on the minutes of said board, determined to call in an installment of six and one-fourth per cent of the 333 Am. St. Rep. 168.

22 Am. St. Rep. 814.

whole of said assessment, to wit, five hundred and sixty-six dollars and twenty-six cents; that owing to the said third installment not having been paid within twenty days from the date of said call, to wit, on or before February 11, 1893, (but was paid March 2, 1893), a cause of action for the collection. of the same and for the whole of said assessment remaining unpaid against the land of said defendant J. W. Hall, to wit, seventy-five per cent thereof, accrued, and as the complaint in this case was not filed within three years of time reckoned from February 11, 1893, the cause of action stated in the complaint is barred by the provisions of subdivision 1 of section 338 of the Code of Civil Procedure of the state of California."

The call of January 21, 1893, remained unpaid for some twenty days after the time named in the call, and the court below proceeded upon the theory that a cause of action accrued thereupon for the whole assessment, and as the suit was not brought within three years after February 11, 1893, it was barred by the provisions of section 338 of the Code of Civil Procedure. In this the court erred. The amount of the call of January 21, 1893, was paid March 2, 1893, and accepted by the plaintiff. Thereafter calls were made for installments August, 1893, November, 1893, January, 1894, September, 1894, April, 1895. These were the fourth, fifth, sixth, seventh, eighth, and ninth installments. They were all paid by defendant and accepted by plaintiff. It is provided in section 3466 of the Political Code as follows: "At the end of thirty days, the treasurer must return the list to the board of trustees of the district, and all unpaid assessments shall bear legal interest from the date of the return. of the list to said board, and shall thereafter be collected and paid in separate installments, of such amounts and at such times, respectively, as the board, from time to time, in its discretion, may, by order entered in its minutes, direct; and a cause of action for the collection of any such installments shall accrue at the expiration of twenty days from the date of the order directing its payment; provided, that if any such installment shall remain unpaid at the expiration of said twenty days, then the whole of the assessment against the land owned by the person failing to pay such installment shall become due and payable at once, and may, in the dis

cretion of the board, be collected immediately, in one and the same action."

Under the provision of the said section quoted the installment called for by the order of January 21, 1893, not having been paid within twenty days thereafter the board of trustees could have regarded the whole amount of defendant's assessment as due and payable, and could, at any time after the expiration of said twenty days and before accepting payment thereof, have commenced an action therefor. But by accepting the amount of said installment March 2, 1893, the plaintiff waived its right to consider the whole amount duc. If, after March 2, 1893, and before making another call or order for payment, plaintiff had brought an action for the whole amount of the assessment it could not have maintained it. It could not receive the payment and, at the same time, claim the benefit or advantage it might gain by the failure to pay. The provision was inserted for the benefit of reclamation districts and to insure prompt payment of installments as called for by the board. If the district in such cases desires to take advantage of the provision, it must do so before it has received the money from the party in default. It will not be allowed to take the money and at the same time take the benefit or advantage arising from the money not being paid. It is too elementary to need citation of authorities that a provision in a promissory note that the whole amount of principal shall become due upon default of interest is waived by the payee afterward accepting the interest. So a provision in a lease that it shall be void if the rent is not promptly paid when due is waived by the acceptance of the rent by the lessor after default. The same principle applies here. The defendant was indebted to the plaintiff for the entire assessment, payable in installments, as ordered by plaintiff's trustees. The statute formed part of the contract and is to be read into it. The whole amount by the assessment became due plaintiff upon default in the payment of the third installment. It afterward accepted the payment. Defendant was by the indulgence of plaintiff allowed to make the payment after default. He cannot now claim advantage by reasons of the indulgence shown him.

The judgment is reversed and the court directed to enter

judgment for plaintiff upon the findings for the amount due as prayed for, and declaring the same lien upon the premises of defendant, and directing a sale thereof to satisfy the claim of plaintiff.

[S. F. No. 2246. Department Two.-February 25, 1901.] In the Matter of the Estate of MORRIS FREUD, Deccased. WARNER BROTHERS COMPANY, Appellant, v. TINY FREUD, Administratrix, Respondent.

ESTATES OF DECEASED PERSONS-SALE OF REAL ESTATE-CODE PROVISION NOT RETROACTIVE.-The amendment of 1893 to section 1536 of the Code of Civil Procedure, which authorizes a sale of real estate "for the advantage, benefit, and best interest of the estate," is not retroactive, and cannot apply to the estate of a decedent who died prior to its adoption; and a sale of the real estate of one who died in 1883 must be governed by the terms of that section as it then stood, as amended in 1880.

ID. SALE FOR EXPENSES TO ACCRUE-PROSPECTIVE CHARGE AGAINST ESTATE. A sale of real estate may be ordered to meet prospective charges or expenses to accrue thereafter, even though there may be no debts or expenses of administration accrued and unpaid; and a prospective charge for expense which the executor or administrator is authorized to incur and charge against the estate is sufficient to justify the sale.

ID.-RICHT OF EXECUTOR TO REDEEM MORTGAGED PROPERTY-VALID ORDER TO SELL REALTY.-An executor or administrator, in the dis charge of his duty and power as a trustee to preserve the estate, may pay off liens existing upon it when necessary for that purpose, and may redeen the real estate from the lien of a mortgage made by the decedent, though not presented as a claim against the estate; and may charge the expense to the estate; and a valid order of sale may be made for the purpose of redeeming the mortgaged premises, and of paying debts, expenses, and charges of administration.

ID. REDEMPTION PREVIOUSLY MADE UNDER DEVISEE-FORECLOSURE BY PARTY REDEEMING SUBROGATION TO LIEN OF ORIGINAL MORTGAGE. The fact that a redemption had been previously made by the successor in interest of one of the devisees from a sale under foreclosure of the mortgage made by the decedent, who acquired no title thereby, but only an equitable lien by subrogation to the lien of the original mortgage, and who brought an action to foreclose the same against the estate and the other devisees,

cannot affect the right of the administratrix of the estate to redeem from the lien of the original mortgage.

ID.-EQUITY JURISDICTION OVER REDEMPTION-AUTHORITY OF SUPERIOR COURT. Under existing law the superior court having jurisdiction of the estate of a deceased person has equity jurisdiction over the subject of redemption from a mortgage made by the decedent; and its order allowing a sale by the administrator for the purpose of obtaining means for the redemption confers upon him an authority to redeem, which cannot be questioned. ID.-SETTLEMENT OF ACCOUNTS OF ADMINISTRATRIX-CREDIT UPON FAMALLOWANCE-QUESTION OF DELAY-PROVINCE OF SUPERIOR COURT. Whether in the settlement of the accounts of an administratrix a credit made to her as widow upon family allowance should have been reduced by the court by reason of her delay in closing the estate, is a question to be determined by the superior court, and its decision will not be disturbed if no sufficient reason appears therefor.

ILY

ID.-AUTHORITY TO MORTGAGE REAL ESTATE-INTEREST OF LIENHOLDER SEEKING TITLE.-The superior court may order a mortgage of the real estate of the decedent for the purpose of paying liens on the realty; and in making such order the interest of one who is seeking to acquire the title to the property adversely to the estate cannot be considered.

APPEAL from orders of the Superior Court of the City and County of San Francisco, directing the sale of the real estate of a deceased person, settling the annual account of the executrix, and directing the mortgage of real property. J. V. Coffey, Judge.

The facts are stated in the opinion of the court.

Hart H. North, Henry E. Monroe, and W. B. Treadwell, for Appellant.

W. S. Goodfellow, and William B. Bosley, for Respondent.

THE COURT.-Appeals from an order of sale of real estate, an order settling annual account of administratrix, and an order for mortgage of real property. The several appeals will be considered in the order stated.

The deceased died seised of two lots of land, described in the petition, which he devised to his widow, Tiny Freud (now administratrix), "to hold the same during her lifetime. in trust for (testator's) five children" (named in the will, and) "upon the death of (the) wife .... to be divided among (his) said children share and share alike." The will