taining a covenant to the effect that the grantee assumed such payment.

[2] ID. MANNER OF ASSUMPTION OF PAYMENT.-In a grant of land encumbered by a deed of trust, it is not necessary that there should be a formal promise on the part of the grantee to pay the obligation in order to render him liable therefor if his obligation so to do appears from a consideration of the entire conveyance.

[3] ID.-DEED CHANGE OF NAME OF GRANTEE-EFFECT OF.-A deed is not void by reason of the substitution therein with the consent of the grantor after its signing and acknowledgment, but before its delivery of the name of a different grantee.

Appeal from the Superior Court of Alameda County J. J. Trabucco, Judge.

For Appellant-J. L. Smith.

For Respondent-Snook & Church.

This is an appeal from the judgment in an action brought to recover the amount of a deficiency arising under a sale of real property by virtue of a deed of trust given to secure the payment of a certain promissory note.

Very briefly, the essential facts of the case are these: In the month of April, 1915, A. W. Morey owned a certain piece of real property which stood in the name of M. McDonough. At that time Morey was or became indebted to the plaintiff D. C. Dutton in the sum of $1,250, whereupon, at the instance of Morey, McDonough gave to plaintiff his promissory note in that amount secured by a deed of trust to said property. Thereafter, at the request of Morey, McDonough signed and acknowledged a deed conveying said property to Ella B. Morey, the wife of A. W. Morey, and wherein there was a covenant to the effect that the grantee assumed payment of said note. Ella B. Morey was not informed of the execution or existence of this deed and it was never delivered to her. Shortly after it was made Morey agreed to a trade of the land with William Locke-Paddon, the appellant herein, but instead of causing a new deed of the land to be made, he, with the consent of McDonough, altered this deed made to his wife by inserting in place of her name the name of appellant, and as so altered he delivered the deed to the appellant. The note secured by the deed of trust not being paid when due, the trustee sold the land under the terms of the trust, and after payment of the expenses of the trust the balance received from the sale was credited by plaintiff upon his note, leaving a deficiency, to recover which this action was brought.

[1] The evidence abundantly supports the finding of the court that the appellant agreed to assume payment of the obligation secured by the deed of trust. From the circumstance that a covenant to that effect appears in his deed he is presumed to have had knowledge of its existence from the time he accepted that instrument. It was also shown that he had actual knowledge that such covenant was contained in his deed, and that the holder of the obligation intended to look to him for its payment. He not only accepted the deed burdened with this covenant, but on several occasions treated with the plaintiff concerning phases of the transaction on the basis that this covenant was contained in the

deed. In a word, and as before stated, the evidence shows clearly by the conduct of appellant that he assumed the payment of the note for which the trust deed had been executed.

[2] In an action like this it is not necessary that there should be a formal promise on the part of the grantee to pay the obligation encumbering the land conveyed in order to render him liable therefor if his obligation so to do appears from a consideration of the entire conveyance. "The obligation may be made orally or in a separate instrument; it may be implied from the transaction between the parties, or it may be shown by the circumstances under which the purchase was made, as well as by the language used in the instrument." (Hopkins v. Warner, 109 Cal. 133. See, also, Lick v. Anderson, 29 Cal. App. 491.)

[3] The only other point in the case seriously urged by the ap pellant is one concerning the effect of the alteration of the deed whereby the name of the appellant was substituted for the name of Ella B. Morey. As to that point, while it may be said that the method pursued was unusual, it cannot for that reason be said that the deed is void. The paper not having been delivered to Mrs. Morey conveyed no title to her, and was, considered as a conveyance of real property, no better than a blank form. The erasure of Mrs. Morey's name and the insertion in its place of that of the appellant was not the alteration of an instrument, since the instrument had not yet been created. It was merely equivalent to filling in a blank form, although one a little more complete than is usually the case. Morey, the real owner of the property, delivered the deed to appellant with the intention thereby to pass title, and in our opinion it had that effect. As to whether or not there should have been a reacknowledgment of its execution need not here be considered, as that question refers to its status considered from the point of view of its right to recordation, with which we are not at present concerned.

The judgment is affirmed.

We concur:

BEASLY, J. pro tem.

ZOOK, J. pro tem.

KERRIGAN, J.

Civil No. 2696. Second Appellate District. June 28, 1918. EGBERT VAN ALEN, EUGENIA D. PORTER and CHARLES L. EVANS, Petitioners, v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF LOS ANGELES, and GRANT JACKSON, Judge of said Court, and E. L. KINNEY, Respondents.

[1] RECEIVER-APPOINTMENT ON EX PARTE APPLICATION-FAILURE TO GIVE BOND VOID ORDER.-An order appointing a receiver in an action for the foreclosure of a mortgage after decree of foreclosure, without requiring a bond, is void under section 566 of the Code of Civil Procedure, the complaint containing no allegations upon which such an appointment could be based and the defendants having defaulted in the action.

Original application made to the District Court of Appeal for

the Second Appellate District for a writ of prohibition to the Superior Court of Los Angeles County-Grant Jackson, Judge.

For Petitioners-Charles L. Evans.

For Respondents-D. H. Parke.

In a certain action in the superior court, brought for the foreclosure of a mortgage, in which the petitioners here were defendants, an order was made, after decree of foreclosure, appointing the respondent Kinney a receiver to take possession of the property mentioned in the decree. The receiver endeavored to take possession but the petitioners refused to surrender it and were cited to show cause, in the superior court, why they should not be punished for contempt. They are here on a petition for a writ of prohibition preventing the respondent court from so punishing them.

It is contended by the petitioners that the order appointing the receiver is void on various grounds, but one only of them need be considered. The petitioners defaulted as defendants in the foreclosure action, but there were no allegations in the complaint upon which a receiver could have been appointed. No notice was given the petitioners of the application for the appointment of a receiver. Therefore, considering the form of the complaint, and notwithstanding the default of the petitioners, the application was an ex parte one. Section 566 of the Code of Civil Procedure provides: "If a receiver is appointed upon an ex parte application, the court, before making the order, must require from the applicant an undertaking, to the effect that the ap

plicant will pay to the defendant all damages he may sustain by reason of the appointment of such receiver. . In the present instance no such bond was required or given either before or after the appointment of the receiver. [1] The order was void (Stoff v. Erken, 172 Cal. 481).

A peremptory writ of prohibition will issue restraining the respondent court from punishing the petitioners for contempt. WORKS, J., pro tem.

We concur:

CONREY, P. J.
JAMES, J.

Civil No. 2703. Second Appellate District. June 26, 1918.

J. C. CRAIG, Executor of the Last Will and Testament of Valentine Kratz, Deceased, Plaintiff and Respondent, v. CHARLES STANSBURY, Defendant and Appellant.

Civil No. 2712. Second Appellate District. June 26, 1918. CHARLES STANSBURY, Petitioner, v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, in and for the County of Los Angeles, and HONORABLE JOHN M. YORK, Judge Thereof, Respondents.

[1] SUPERSEDEAS-EXECUTION SALE AFTER AFPEAL AND STAY BOND -POWER TO VACATE.-The appellate court has inherent power, by a writ of supersedeas, to vacate an execution sale made after the

perfecting of an appeal from the judgment for the enforcement of which the sale was made, and the giving of a stay bond.

[2] ID. SALE PRIOR TO APPEAL-REMEDY.-Where an execution sale has been completed before an appeal has been taken from the judgment sought to be executed through such sale, any right of the judgment debtor to have the sale set aside must be enforced by appropriate proceeding in the trial court, and not by supersedeas. [3] ID. EXECUTION-VACATION OF SALE-CONSPIRACY TO DEFRAUD -REMEDY-SUIT IN EQUITY.-An execution sale is not subject to be set aside by motion based upon affidavits, but by an independent suit in equity, where the relief is based upon the alleged ground that the sale was conducted in furtherance of a conspiracy to commit a fraud upon the rights of the judgment debtor by making a sale of his property at an inadequate price, and that the county clerk, the sheriff, the judgment creditor and the purchaser at the sale were all parties thereto.

Appeal from the Superior Court of Los Angeles County, Gavin W. Craig, Judge, in the action first above entitled, with an application for a writ of supersedeas therein. Original application made to the District Court of Appeal for the Second Appellate District, in the proceeding second above entitled, for a writ of mandate to the Superior Court of Los Angeles County-John M. York, Judge.

For Appellant-Hocker & Austin; W. A. Alderson; Andrews, Toland & Andrews; Kenton A. Miller.

For Respondent Craig-George P. Adams.

For Petitioner Stansbury-Andrews, Toland & Andrews; Kenton A. Miller; Hocker & Austin; W. A. Alderson.

For Respondent Superior Court-Haas & Dunnigan; George P. Adams; Wm. M. Brown.

For P. J. Wilson, the purchaser at the execution sale-Haas & Dunnigan.

For convenience the action first above entitled, Craig v. Stansbury, will throughout this opinion be referred to as the action; and the second matter, Stansbury v. Superior Court, will be alluded to as the mandate proceeding. The action was commenced for the purpose of recovering on a promissory note, the plaintiff had judgment and the defendant appeals. The appeal is not yet before us for decision; but the appellant asks for the issuance of a writ of supersedeas, upon his claim that the execution of the judgment had been stayed by the giving of bond, in connection with the appeal, before the making of a certain sale by the sheriff on execution, as well as upon grounds other than the ground that execution had been stayed. The application is made upon notice to the purchaser at the sale, as well as to the respondent in the action. After the appeal was taken, but before the application for a supersedeas was filed in this court, the appellant presented to the trial court, in the action, a motion to set aside the execution sale. That motion was made upon all the grounds now placed before us as a basis for the application for the supersedeas. The trial court entered a dismissal of the motion on the ground that the "court has not jurisdiction to entertain" it "on the facts stated in the notice of motion". There

upon the appellant instituted the mandate proceeding for the purpose of compelling the trial court to proceed to hear and determine the questions involved in the motion and an alternative writ was allowed.

Our first labor is to determine whether a supersedeas will issue out of this court, as demanded. It is to be observed, at the outset, that the form of relief now requested has had its most frequent use in those cases in which there has been a stay of the execution of a judgment appealed from, and in which the trial court has threatened to take some step toward an enforcement of the judgment, notwithstanding the operation of the stay (McAneny v. Superior Court, 150 Cal. 6, 9; Southern Pac. Co. v. Superior Court, 167 Cal. 250, 252); in other words, the remedy by supersedeas is usually regarded as injunctive or prohibitive in character and not corrective. We are now, however, asked to apply the remedy as a corrective, by ordering vacated a sale which has been consummated by the sheriff, pursuant to final process of the court, after the perfecting of an appeal and the giving of a stay bond. Notwithstanding what we have said above as to the purpose for which the remedy by supersedeas usually has been employed, there is direct authority, also, for its use in such a case as this. In Owen v. Pomona L. & W. Co., 124 Cal. 331, an appeal had been taken and a stay of execution was operative under it. The respondent, pending the appeal, took out an execution or order of sale and the sheriff sold certain property described in the decree appealed from. The appellant moved to set aside the sale and quash the execution on the ground that they were in violation of the right to a stay and the court granted the motion,⚫ going so far as to say, "No question is made as to the power and duty of this court to grant the relief sought by the motion if all proceedings on the judgment were stayed by the appeal." This case is directly in point here and it has been cited with approval in McAneny v. Superior Court, supra, and in Southern Pacific Co. v. Superior Court, supra. [1] We conclude that this court has the inherent power-for it is to that source that the right to issue the writ of supersedeas is ascribed by the authorities-to vacate the sale now sought to be set aside, if, as claimed by the appellant, the appeal was perfected and a stay of execution became operative before the sale was made.

We are next to inquire whether the appeal had been perfected and the stay of execution imposed before the completion of the sheriff's sale; and, in determining this question, the property sold having been personalty, we consider the conclusion of the sale as being at least as early as the time of the issuance of the sheriff's certificate of sale. (Code Civ. Proc., sec. 700a.) The notice of appeal and the stay bond were filed with the trial court together, in point of time, and the execution sale was conducted, including the issuance of the certificate of sale, on the same day. The question of priority, as between the sale and the perfecting of the appeal, is therefore one of hours only. This fact is conceded by the entire record before us, which consists of voluminous affidavits and of some testimony from the witness stand. It would