chaser free of the lien of their mortgage, and that the proceeds of the sale should be paid to Nellis; and on these facts the lien on the sheep was not translated to the proceeds in the hands of the purchaser. White Mountain Bank v. West, 46 Me. 15, 20, is a case directly in point, and we agree with the view there stated, that "from the time of sale the lien of the mortgage was extinguished, and the mortgagee was left with no security but the personal promise of the mortgagor to pay the proceeds to him." There are many decisions. that the mortgagee of chattels may authorize the mortgagor to sell the encumbered property and apply the proceeds of sale upon the debt secured, and that such an agreement does not render the mortgage fraudulent in law, nor affect the lien thereof prior to the sale (Bracket v. Harvey, 91 N. Y. 221; Murray v. McNealy, 86 Ala. 234; 11 Am. St. Rep. 33; Lane v. Starr, 1 S. Dak. 107, and cases cited); but we have found no case in which the lien was held to attach to the proceeds unpaid by the purchaser. The doctrine of the case from 46 Maine, above cited, is that if the mortgagee "wished to reach the proceeds in the hands of the purchasers, he, like other creditors, should have resorted to a trustee process under the statute."

It is urged for the mortgagees that the agreement of November 28, 1893, operated to create a trust in their favor in the fund to be derived from the sale, or an equitable assignment of such fund to them. It seems to us there might be more color for this contention, or some part of it, if the mortgage had vested the title to the sheep in the mortgagees, as was the rule of the common law; but under our law, and presumptively under that of Arizona, the title remained in Nellis. (Civ. Code, sec. 2888; Bank of Ukiah v. Moore, 106 Cal. 681.) He being the owner and possessed of the sheep, to say that his agreement created, as against creditors, a trust in or an assignment of the proceeds of a sale which he had not then made, or, so far as shown, contracted to make, is to say that he could create a secret trust in the

sheep or a pledge thereof and yet retain possession of them-contrary to the statutes. (Civ. Code, secs. 2988, 3440.) Authorities are cited to show that such enactments have no application to choses in action; but the agreement of November 28th did not purport to deal with a chose in action. And, aside from other considerations, the retention by Nellis of the authority to collect the anticipated fund to arise from the sale was inconsistent with the idea of an equitable assignment of the same. (Christmas v. Russell, 14 Wall. 69, 84; Christmas v. Griswold, 8 Ohio St. 558.)

The appeal of Boyce is easier of disposition. By the contract of sale between Nellis and Mier the former was to deliver the sheep at Maier's slaughterhouse, about five miles from the railroad station at Los Angeles; they were to be weighed at the slaughterhouse, and be paid for at the rate of three cents per pound. The garnishment in the suit of Boyce against Nellis was served on Maier after the sheep had been unloaded at the station and while they were yet in charge of Nellis' employees and before they had reached the slaughterhouse or had been weighed; consequently, before the sale was complete and before any credit existed in favor of Nellis and against Maier, and when it was not certain that any ever would exist. The law aids the vigilant, but in this instance the creditor was vigilant overmuch, and his attachment was invalid. The garnishment under his subsequent execution was after the attachments of the other creditors had been levied. and perfected by judgment, and they were rightly held entitled to precedence in the distribution of the fund. (Early v. Redwood City, 57 Cal. 193; 1 Freeman on Executions, sec. 165.) The judgment should be affirmed. HAYNES, C., and SEARLS, C., concurred.

For the reasons given in the foregoing opinion the judgment is affirmed.

GAROUTTE, J., VAN FLEET, J., HARRISON, J.

Hearing in Bank denied.

[S. F. No. 280.

IN THE MATTER OF

Department One.-March 24, 1896.]

THE ESTATE OF ANTONIO PINA,
DECEASED.

ESTATES OF DECEASED PERSONS-APPOINTMENT OF ADMINISTRATORS DE BONIS NON-IMPROPER REFUSAL OF COURT-CONVEYANCE BY HEIRS. Where the administration of an estate has become vacant, and the estate has not been fully administered, it is the duty of the court to appoint an administrator to complete the administration; and the court cannot properly refuse to do so, upon the ground that the heirs have parted with their interest in the property, nor can it dispense with the usual and orderly administration of the estate, or determine the ques tion of title as between the estate and persons claiming adversely to it. APPEAL AMICI CURIE-CONTROL OF LITIGATION - DIMINUTION OF RECORD-APPOINTMENT BY LOWER COURT.-Counsel appearing as amici curiœ have none of the right of an adversary in control of the litigation, and are not authorized to suggest a diminution of the record; nor are their rights or liberties enlarged by their appointment as amici curiæ by the lower court, which has no authority to make such appointment.

APPEAL from an order of the Superior Court of Sonoma County. S. R. DOUGHERTY, Judge.

The facts are stated in the opinion of the court.

George Pearce, for Appellant.

As the evidence showed that there was property of the estate left unadministered, the court erred in refusing to appoint an administrator. (Code Civ. Proc., secs. 1377, 1379, 1395, 1405, 1426.) The court erred in refusing to hear the request of Josefa Adelaide Carrillo read. (Code Civ. Proc., sec. 1379.)

Moreland & Norton, A. B. Ware, and Thomas Rutledge, for Respondents Norton, Ellis, and Markley, and as amici curiæ.

VAN FLEET, J.-The deceased died testate in the county of Sonoma, leaving estate therein. His will was duly admitted to probate, and letters testamentary issued to the person named therein as executor. Subsequently the executor resigned his trust without having closed the administration of the estate, and thereafter, in 1891,

an administrator with the will annexed was appointed and qualified.

In March, 1895, while the administration was still incomplete, the bondsmen of the administrator withdrew from his bond, and on the 26th of that month his letters were revoked for failure to file a new bond. Thereupon, in April, 1895, the appellant, Carrillo, claiming as the nominee of the next of kin entitled to administer, applied to be appointed administrator of the estate. His application was contested by the public administrator, who asked that letters be issued to himself. Certain other parties seem to have opposed the appointment of any administrator of the estate, but upon what ground or with what right does not clearly appear.

At the hearing there was evidence tending to show that there was property of said estate-an interest in certain real property coming to deceased under a patent from the United States government-which had not been administered, and that the administration of the estate had never been concluded, by decree of distribution or otherwise. Notwithstanding this showing, the court below denied and dismissed the petition of said Carrillo, and also that of the public administrator, upon the ground, as stated in its order, that it appeared that there were no creditors of said estate and no property thereof, and hence no necessity for an administrator. From this order Carrillo appeals.

We think the action of the lower court was justified by neither the facts nor the law. There was no evidence whatever to sustain the finding, if it may be so regarded, recited in the order that there was no property of the estate. The evidence clearly tended to establish the existence of property of the estate; and that it had ever been fully administered was not even pretended.

The court seems to have acted largely upon some general statements that the heirs of the deceased had parted with their interest in the property of the estate; but not only was there no competent evidence of that

fact (assuming that such question was material or could be litigated on an application for letters), but there was no evidence to show who the supposed heirs really were. We know of no such authorized method under the law of dispensing with the usual and orderly administration of an estate of a deceased person; or of thus determining the question of title to real property as between an estate and persons claiming adversely to it. Under the facts appearing, it was the duty of the court to proceed and appoint an administrator with the will annexed to complete the administration. (Code Civ. Proc., sec. 1426.) Whether the appellant is entitled to be so appointed the court did not, by reason of the erroneous view taken by it, proceed far enough to determine, but dismissed the application upon the grounds stated, without hearing the evidence as to appellant's right to administer. The latter was entitled to have his application determined upon its merits, and for the failure of the court to so determine it the order must be reversed.

We have not acted upon the suggestion made by counsel appearing as amici curiæ, for a diminution of the record, for the reason, in the first place, that we do not deem the matters suggested material, and, in the next place, we do not recognize any right in counsel appearing amicus to interfere with or control the condition of the record in such an instance. They have not the rights in that regard of an adversary in the litigation. Nor are the liberties of counsel thus appearing at all enlarged in this instance because the court below assumed to appoint them as amici curia to represent it on the appeal. The court is not a party to the appeal, and we know of no authority for the making of such appointment in any case. To the extent to which they are entitled to be heard they have the same rights without such appointment as with it.

The order, so far as it affects the appellant Carrillo, is reversed, and the cause remanded for a new trial.

HARRISON, J., and GAROUTTE, J., concurred.