Tobin & Tobin, for Respondent.

HART, J.-This is an appeal, upon the judgment-roll alone, from a decree foreclosing a mortgage upon certain real property of the defendant.

The decree directs the sale of the mortgaged premises by a commissioner named by the court, and further adjudges and decrees that the purchaser or purchasers of said premises at such sale be let into the possession thereof, and that any person or persons who may be in the possession of said premises or any part thereof, or "who, since the commencement of this action, has come into the possession under them, or either of them, deliver possession thereof to such purchaser or purchasers, on production of the commissioner's deed for such premises, or any part thereof. And it is further ordered, adjudged and decreed, that in case the purchaser of said premises or any part thereof at said commissioner's sale shall be refused possession thereof, a writ of assistance shall forthwith issue without further notice or order of this court requiring the sheriff . . . to place and maintain said purchaser in the quiet and peaceful possession of said premises, and every part thereof."

It is objected that the foregoing provisions of the decree are erroneous because the purchaser at the commissioner's sale could, by virtue thereof, be let into the possession of the mortgaged premises before the expiration of the time within which said premises may be redeemed.

We do not think the provisions of the decree to which criticism is thus directed should be subjected to the construction which the appellant here gives them. To the contrary, we think they mean and were clearly intended to mean that the purchaser of the mortgaged premises at the commissioner's sale should be entitled to and put into the possession thereof upon the production of the commissioner's deed, showing title in him, only when, under the law, he was rightfully entitled to possession. In other words, since it is true that a purchaser of property at a sale under the foreclosure of a mortgage does not acquire the right to the possession of such property until the time for the redemption from such sale has expired (Purser v. Cady, 120 Cal. 214, [52 Pac. 489]; Mau, Sadler & Co. v. Kearney, 143 Cal. 506, [77 Pac. 411]),

it must be assumed that it was not intended by the decree in the case at bar that the purchaser at the commissioner's sale should be put into the possession of the premises until such possession could be legally given, or that the writ of assistance therein provisionally authorized should be issued until its execution would possess legal efficacy, and certainly it would have none if attempted to be invoked in execution of the decree of foreclosure prior to the expiration of the time within which the property may, under the law, be redeemed from the sale. While perhaps it may be the usual practice to insert in a decree foreclosing a mortgage a direction that the possession of the mortgaged premises be delivered to the purchaser thereof at the foreclosure sale, it is not necessary to do so under our system, nor where such a clause is included in or is omitted from such a decree can it add to or detract from the jurisdiction or power of the court to enforce its decree, and so put in possession, at the proper time, the purchaser of the property at the foreclosure sale. (Montgomery v. Tutt, 11 Cal. 190; Horn v. Volcano Water Co., 18 Cal. 141; Montgomery v. Middlemiss, 21 Cal. 103, [81 Am. Dec. 146]; Sichler v. Look, 93 Cal. 600, [29 Pac. 220]; Hibernia S. & L. Soc. v. Lewis, 117 Cal. 577, [47 Pac. 602, 49 Pac. 714]; California Mortgage & Sav. Bank v. Graves, 129 Cal. 649, [62 Pac. 259].) But there is no impropriety in making provision in the decree or judgment, in an action to foreclose a mortgage, for the issuance of the writ to compel any party concluded by such decree or judgment to deliver the possession of the premises to the purchaser at the mortgage sale, and such a provision would obviously mean, as before declared, that the writ would issue only when the exigencies of the situation required it and the purchaser was legally entitled to possession. (See foot note to Wilson v. Polk, 51 Am. Dec. 154.)

The judgment is affirmed.

Chipman, P. J., and Burnett, J., concurred.

[Civ. No. 1004. Third Appellate District.-December 5, 1912.] SHEA-BOCQUERAZ COMPANY (a Corporation), Respondent, v. FERRIS HARTMAN, Appellant.

ACTION ON NOTE JUDGMENT FOR DEFENDANT-GENERAL ORDER GRANTING NEW TRIAL. - CONFLICTING EVIDENCE-INSUFFICIENCY OF EVIDENCE-DISCRETION.-In an action on a note where the judgment was for the defendant, and an order granting a new trial to the plaintiff was in general terms, and one of the grounds of the motion was insufficiency of the evidence to justify the decision, and it appears that the evidence was conflicting, under the well settled rule, it was within the discretion of the court to grant a new trial on that ground.

ID.-APPEAL FROM ORDER — UNTENABLE CLAIM OF APPELLANT-NEW TRIAL FOR UNPAID INTEREST ON NOTE.-Upon an appeal from the order, it is held that there is nothing in the record that would justify the claim of the appellant that the new trial was granted merely to adjudicate unpaid interest on the note in suit. If it had been the intention of the trial court so to limit the order, it would undoubtedly have so made it to appear in the order granting the motion.

ID.-UNLIMITED ORDER-DUTY OF APPELLATE COURT.-The court not having limited its order in any way, this court is compelled to view it by the light of the settled rule in this state, and hold that if the order can be upheld upon any ground embodied in the notice of intention, it is the duty of the appellate court to sustain it.

APPEAL from an order of the Superior ourt of the City and County of San Francisco granting a new trial. J. M. Seawell, Judge.

The facts are stated in the opinion of the court.

J. W. Cochrane, for Appellant.

J. C. Meyerstein, and J. V. B. Fillipini, for Respondent.

HART, J.-This is an action by the plaintiff against the defendant on a promissory note for the sum of three thousand dollars.

The court awarded judgment to the defendant, and thereafter granted the plaintiff's motion for a new trial.

This appeal is by the defendant from the order granting a new trial.

It appears from the testimony that the plaintiff was a creditor of the Schroeder-Hartman Company, of which corporation, Hartman is a member. It likewise appears that the defendant and John D. Schroeder, also a member of the Schroeder-Hartman Company, made and delivered the note involved here jointly and severally as a personal obligationthat is to say, that said note constituted their individual obligation and not that of the corporation bearing their names and of which they were members. The note, which was dated July 25, 1906, and made payable "one day after date," was, as shown, for the sum of three thousand dollars, and the defendant had paid thereon the sum of one thousand dollars.

On the nineteenth day of March, 1910, a payment of two thousand dollars was made to the plaintiff by John D. Schroeder.

The plaintiff claims that the understanding was that the sum so paid was to be applied to and credited on its book account against the Schroeder-Hartman Company and not to be applied toward the extinguishment of said promissory note. Schroeder insists that he made said payment with the specific request and understanding that it be credited on the note and not on the book account of the plaintiff against the Schroeder-Hartman Company, and that, having expressed such desire to the plaintiff, when making such payment, he was entitled to have the money so paid applied accordingly. (Civ. Code, sec. 1479, subd. 1.)

It is not thought to be necessary to examine or reproduce here the testimony in detail, it being regarded as sufficient to say that Schroeder's testimony, as is true of the testimony of some other witnesses testifying in behalf of the defendant, harmonizes with and would sustain, if accepted by the trial court or a jury, his contention as to the circumstances of the transaction as above indicated, while, on the other hand, the testimony of the witness, O. E. Bozio, assistant secretary of the plaintiff, and by whom the transaction was conducted in behalf of the latter, was in direct contradiction to that presented by the defendant and, if believed, sufficient to support a finding in favor of the plaintiff's contention as to the circumstances of the transaction. In brief, this witness tes

tified that, prior to the time at which the payment was made, he had a conversation with Schroeder in which the latter spoke of the proposed payment of the two thousand dollars and expressed the desire that it be applied on the note in preference to applying it to the book account against his corporation; that he (Bozio) then said that he preferred to place the money to the credit of the book or merchandise account. "I said," proceeded Bozio, "I didn't care to take the note up first and wanted the merchandise account settled first, on account of the fact that the note was a personal matter between him and Mr. Hartman, and I considered it much better security than the open account of the corporation that was virtually out of business. He said all right, if that was the way I felt about it it was all right, and after that he paid me the two thousand dollars. He didn't ask me for the note. I have it still."

There is, as will, of course, be noted, a conflict in the evidence, and, therefore, under the well-settled rule, it was within the discretion of the court to grant a new trial upon the ground of the insufficiency of the evidence to support the decision. (Domico v. Cassasa, 101 Cal. 413, [35 Pac. 1024]; Mills v. Oregon Ry. & Navigation Co., 102 Cal. 357, [36 Pac. 772]; Warner v. Thomas Dyeing & Cleaning Works, 105 Cal. 409, [38 Pac. 960]; In re Martin, 113 Cal. 480 [45 Pac. 813]; Cutten v. Pearsall, 146 Cal. 690, [81 Pac. 25]; McCarthy V. Morris, 17 Cal. App. 723, [121 Pac. 696].)

But the point upon which the appellant solely relies for a reversal of the order is founded upon the claim that there was no necessity for a new trial, since, as is the contention, the motion for a new trial was granted for the single reason that the court, in and by its judgment, failed to take into account and allow interest which the evidence indisputably discloses had accrued upon the note at the rate of six per cent per annum from the first day of January, 1910, to the nineteenth day of March, 1910, the date of the payment of the two thousand dollars. Whether, were it true that the motion was granted merely to adjudicate the question as to the interest referred to, the condition of the findings is such as that that omission could have been supplied by a mere modification of the judgment or without a new trial upon said question, we need not express any opinion. It is very clear, however,