mortgagor upon a given date. The plainest considerations of equity demand, so far as the mortgagor is concerned, that if he has knowledge of this and intends to cause the mortgage to be canceled and treated no longer as security for advances made to him, he should so notify the mortgagee. Otherwise equity would be countenancing the palpable fraud of permitting the mortgagor to borrow moneys upon the security of a mortgage which the mortgagee believed to be valid and existent, but which the mortgagor, at some future time when it suited his convenience, was to be permitted to say had been extinguished. Unquestionably then if Buck did know that the books upon September 15th or September 21st showed a balance in his favor and he meant to take advantage of this fact by declaring the mortgage canceled, it was his duty, before seeking further advances, so to have notified his mortgagee. Not having done so, he will not be allowed to profit by his silence, for it is not for a moment to be supposed, nor even is it contended, that the appellant made these later advances, aggregating over five thousand dollars, other than upon the faith of the mortgage security, or that it would have advanced one dollar had it been notified that the mortgage security was by Buck regarded as at an end. The controlling principles governing a mortgage such as this for future advances are well set forth in the American & English Encyclopedia of Law (vol. 20, 2d ed., pp. 962, 1055): "A mortgage given to secure an existing indebtedness and also such other indebtedness as might afterwards accrue from sales of goods to the mortgagor, is, as regards future liabilities, a security by way of continuing guaranty under which the mortgagee has an implied authority to sell, trusting to his security, until revocation. And even where a mortgage has been in form extinguished, by payment or otherwise, equity will keep it alive or consider it extinguished as will best subserve the interest of justice and the actual and just intent. of the parties."

Aside from these general equitable considerations which forbid that the mortgage should be treated as extinguished, the same matter regarded from a narrower point of view equally establishes the unsoundness of the trial court's conclusion. Thus, it is shown that Buck had given a number of promissory notes to appellant which by their terms became

due after the date when, as the court found, there was a balance in favor of Buck and the mortgage lien therefore came to an end. Whatever moneys Buck may have had to his credit in the hands of the appellant could not be applied as an offset, without Buck's consent, to those notes before their maturity. (McKean v. German-American Bank, 118 Cal. 334, [50 Pac. 656].). Nor did the fact that the appellant had charged the amount of these notes to Buck's account at the time of the advances affect this principle. Under the written contract of the parties evidenced by the notes, these sums were not due until the maturity of the notes, and when the notes did in fact mature the balance was heavily against Buck upon his account. No well-grounded reason can be advanced why the payment of the three thousand dollars to the Sutter National Bank under the appellant's guaranty should not be made a charge against Buck under the mortgage lien. The evidence discloses that Buck applied to appellant for this loan, that appellant felt unable to advance the money to Buck directly at that time, and secured the money for him from the Sutter Bank by guaranteeing his indebtedness. The guaranty was an independent obligation. The appellant did not become a surety and was in no sense a volunteer in paying the debt, the very interest upon which it had been compelled to meet. If the appellant had advanced the money directly to Buck no question would arise, but that the advancement would be secured under the terms of the mortgage. The advances thus indirectly made by the Sutter Bank and afterward taken over by appellant through its payment to that bank in no material sense changed the nature of the transaction.

Respondent contends that the mortgage is void in that it does not state the total amount of future advances for which it is to create a lien upon the mortgagor's property. This contention finds support in the language of Tully v. Harloe, 35 Cal. 302, [95 Am. Dec. 102], but the language there used was not necessary to the decision, and the decision itself, upon this proposition, has never been affirmed. That there is a diversity of opinion upon the subject may be conceded, but the correct rule as declared by the American & English Encyclopedia of Law (vol. 20, p. 927), is: "Whether the ultimate amount intended to be secured should be definitely stated on the face of the instrument is a question upon which there

is considerable diversity of opinion, but the weight of authority sustains the principle that in the absence of statutes providing otherwise a definite statement of amount is unnecessary and that all that can be required is that a mortgage designed to secure such future liabilities should describe the nature and amount of them with reasonable certainty, so that they may be ascertained by the exercise of ordinary diligence on proper inquiry, the jurisdictions holding that the maximum amount intended to be secured should be stated being in the minority." This court has adopted that rule and has so expressed itself in Tapia v. Demartini, 77 Cal. 383, [11 Am. St. Rep. 288, 19 Pac. 641], where it is said: "If the mortgage discloses upon its face that it is to stand as security for future advancements, the amount of the advances to be made need not be set out. It is sufficiently definite to put subsequent encumbrancers on inquiry, and they must ascertain the extent of the lien, or suffer the consequences." This principle finds support in Witczinski v. Everman, 51 Miss. 841; Lovelace v. Webb, 62 Ala. 271; Ackerman v. Hunsicker, 85 N. Y. 43, [39 Am. Rep. 641].) Moreover, even under the rule contended for by respondent, the advances made by appellant to Buck having been extended before plaintiff's mortgage was given, are secured by the lien of appellant's mortgage. Thus Jones lays down the rule (1 Jones on Mortgages, sec. 364) as follows: "But even where a limitation is necessary in order to constitute a continuing security which will not be affected by subsequent conveyances, a recorded mortgage for an unlimited sum is notice to a subsequent encumbrancer as to all sums advanced upon the mortgage before the subsequent lien attaches."

The foregoing renders unnecessary a discussion of any of the questions advanced upon the second branch of this case— that of the priority of the lien of the unrecorded crop contract over the subsequently executed chattel mortgage to plaintiff.

For the reasons already given, the judgment, in so far as it affects the California Fruit Exchange, appellant herein, is reversed and the cause remanded.

Lorigan, J., and Melvin, J., concurred.

Hearing in Bank denied.

[S. F. No. 5595. Department Two.-March 8, 1912.]

MICHAEL WALL et al., Appellants, v. THOMAS BROWN, Individually and as Administrator of the Estate of Alice Brown, Deceased, Respondents.

HOMESTEAD STATUS OF PROPERTY AT TIME OF SELECTION DETERMINES RIGHT OF SURVIVING SPOUSE-COMMUNITY AND SEPARATE PROPERTY. -Under section 1474 of the Code of Civil Procedure and section 1265 of the Civil Code, the right to have property upon which a homestead has been impressed vest absolutely in the surviving spouse depends upon the character of the property at the time the homestead upon it is selected. If the homestead was selected from the community property or from the separate property of the person selecting or joining in the selection of the same, it vests absolutely in the survivor. It vests otherwise, if selected under certain conditions, from the separate property of either spouse.

ID. HOMESTEAD ON COMMUNITY PROPERTY-DEED OF GIFT OF UNDIVIDED INTEREST TO WIFE-RIGHT OF SURVIVORSHIP NOT IMPAIRED.-Where a homestead is declared by the wife upon community property, and thereafter the husband makes a deed of gift of an undivided interest in the land to his wife, the interest conveyed vests in her as her separate property. Such a conveyance, however, does not have the effect to impair the homestead or to destroy the right of survivorship created thereby to the extent of the property conveyed. ID.-HOMESTEAD DISTINCT FROM LEGAL TITLE.-The homestead is some

thing distinct from the legal title. It qualifies and limits the right of the owner of the title for the benefit and protection of both spouses while living, and to insure future protection to the survivor. ID. ENTIRE PROPERTY VESTS IN HUSBAND UPON DEATH OF WIFE.After such deed of gift to the wife, the homestead, which she had theretofore impressed on the whole property while it was community property, is not, as to the interest conveyed to her, to be deemed and treated as if selected from her separate property without her consent, and as vesting on her death in her heirs, under the provisions of section 1474 of the Code of Civil Procedure. On the contrary, upon the death of the wife, the whole of the property impressed with the homestead vested absolutely in the surviving husband.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. George A. Sturtevant, Judge.

The facts are stated in the opinion of the court.

Stafford & Stafford, and H. I. Stafford, for Appellants. R. W. Gillogley, and Kierce & Gillogley, for Respondents.

LORIGAN, J.-This is an action brought by the plaintiffs, as heirs at law of Alice Brown, deceased, to quiet title to an undivided one-fourth interest in a certain lot of land in the city and county of San Francisco, to which, in his answer. the defendant, Brown, asserted sole ownership.

The case was tried on stipulated facts. Thomas Brown, the defendant, and Alice Brown, deceased, were husband and wife, and on May 26, 1876, said Thomas Brown acquired title to the lot in question as community property. On June 26, 1885, said Alice Brown filed a valid declaration of homestead on this property which was never abandoned. On October 24, 1901, Thomas Brown made a deed of gift to his said wife, conveying to her an undivided one-half interest in and to said lot, which deed was duly recorded, and said Alice Brown continued to own said undivided interest up to the time of her death. She died intestate on October 24, 1902, leaving as her heirs at law her husband and the plaintiff's, her brothers and sister. Thomas Brown was appointed administrator of her estate and on a petition filed by him setting forth the fact that the declaration of homestead was filed on the property by Alice Brown in her lifetime, the court, on April 9, 1903, made a decree in the matter of her estate setting aside the property to him as a homestead. Subsequently, the estate of Alice Brown was settled and closed, but no distribution was made of the undivided interest in the lot acquired by her under the deed from Thomas Brown. This property was not referred to either specifically or generally in the decree.

Upon these stipulated facts the court held as a conclusion of law that upon the death of Alice Brown the title to the entire lot in controversy vested absolutely in her surviving husband, and entered a decree accordingly, from which these plaintiffs appeal.

The real question presented here is, Did the deed from Thomas Brown to his wife of an undivided one-half interest in the community property, theretofore impressed with the homestead, defeat his right to have the whole property on