is not a case where a receiver has "heretofore been appointed by the usages of courts of equity," or one in which such an appointment is specially authorized by any statute. (See Bateman v. Superior Court, 54 Cal. 285; San Jose SafeDeposit Bank v. Bank of Madera, 121 Cal. 543, 545, [54 Pac. 85].) The appointment of a receiver cannot be justified upon any theory that plaintiff is in actual possession of the property. So far as we can understand the theory of defendants as to the facts, the corporation is seeking to protect its property, of which it is actually in possession, from interference to its great injury and loss, at the hands of another who is merely living on the land with its permission. So far as the right to a receiver is concerned, its relation to him is simply the relation of any owner in possession to an unlawful trespasser. By reason of his living upon the land, he may have greater opportunity to impede and interfere with the owner in the enjoyment of its rights of ownership and possession, but this does not affect the question. We are at a complete loss to find any good basis for a conclusion that in such a situation a receiver may be appointed on the application of the owner to take over the custody and management of the property, and protect it against such trespasses and interference.

It is thoroughly settled that, except in cases where receivers have heretofore been appointed by the usages of courts of equity, a situation expressly covered by subdivision 6 of section 564 of the Code of Civil Procedure, a receiver may be appointed only in such cases as the statute expressly specifies. We find no warrant for a conclusion that the usages of courts of equity support an appointment in such a situation as we have here, and it seems very clear to us that no statute authorized the appointment. Something is said about the transaction between J. E. Oliver and plaintiff constituting a trust, but the trust, if any, was one solely in relation to the shares of stock in Oliver's name claimed by plaintiff.

The order appointing a receiver is reversed.

Shaw, J., Sloss, J., Melvin, J., Lorigan, J., Henshaw, J., and Lawlor J., concurred.

[S. F. No. 8193. In Bank.-February 13, 1917.]

NAPA VALLEY ELECTRIC COMPANY (a Corporation), Appellant, v. CALISTOGA ELECTRIC COMPANY (a Corporation), Respondent.

APPEAL FROM ORDER REFUSING INJUNCTION PENDENTE LITE-RESTRAINING ORDER PENDING APPEAL.-On an appeal from an order refusing an injunction pendente lite and dissolving a temporary restraining order, the appellate court has no power to make an order granting the restraining relief prayed for pending the determination of the appeal.

APPLICATION for a restraining order pending an appeal from an order of the Superior Court of Napa County refusing an injunction pendente lite and dissolving a temporary restraining order. Henry C. Gesford, Judge.

The facts are stated in the opinion of the court.

U'Ren & Beard, for Appellant.

THE COURT.-The plaintiff commenced an action in the superior court to enforce specific performance of an alleged contract for the sale of certain property, and sought an injunction pendente lite restraining the defendant from disposing of the property pending the determination of the action.

The superior court having granted a temporary restraining order, on the hearing of the application for an injunction pendente lite made its order denying the same and dissolving the temporary restraining order. It refused the request of the plaintiff to continue in force the temporary restraining order pending the determination of the appeal from the order denying an injunction pendente lite.

The plaintiff has appealed from such order and now seeks from this court an order restraining the defendant, pending such appeal, from disposing of the property; in other words, it seeks from this court, pending the determination of the appeal, precisely the relief it sought to obtain from the superior court by an injunction pendente lite.

It was determined by this court in Hicks v. Michael et al., 15 Cal. 107, 112, 114, that this court has no authority to

grant such relief. At the time of that decision our law, both constitutional and statutory, was substantially the same as it is now in all material respects. This decision has ever since its rendition been regarded by this court as determining this question, and it has been consistently followed by denying applications in all respects similar to this. In the case of Platt v. City and County of San Francisco, S. F. No. 5562, the question was squarely presented and given consideration. No opinion was filed by this court in that matter, but the application was denied because the court was satisfied with the correctness of the doctrine declared by Hicks v. Michael, supra. We see no reason to question the correctness of the decision in Hicks v. Michael, supra.

The application is denied.

[L. A. No. 3846. Department Two.-February 13, 1917.] O. S. DODDS, Respondent, v. A. SPRING et al., Defendants; A. SPRING, Appellant.

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MORTGAGE ASSUMPTION OF PAYMENT BY GRANTEE OF MORTGAGOR.The promise by the grantee of a mortgagor personally to be answerable for the payment of the mortgage may appear and bind such grantee because of a clause in the deed or by a separate written instrument, which need not be executed with the formalities necessary to a deed, and which, if preceding the execution of the deed, is not so merged in the deed that the omission of the assumption clause from the latter instrument will release the grantee from his prior covenant.

ID.-PAYMENT BY PURCHASER-ASSIGNMENT OF MORTGAGE.-If the purchaser of mortgaged premises has assumed payment of the mortgage indebtedness, or has otherwise made himself liable for it, the payment of the debt will extinguish the mortgage, and he cannot take an assignment of it to himself; and a subsequent assignee from him, after maturity, of the indebtedness takes subject to all existing defenses.

ID. PERFORMANCE EXTINCTION OF OBLIGATION.-The full performance of an obligation by anyone for the principal with his assent, if accepted by the creditor, extinguishes the obligation.

APPEAL from a judgment of the Superior Court of Riverside County. F. E. Densmore, Judge.

The facts are stated in the opinion of the court.

Rupert B. Turnbull, for Appellant.

Ralph E. Swing, for Respondent.

MELVIN, J.-Plaintiff sued to foreclose a mortgage made by G. O. Trauzettel and his wife, Georgia A. Trauzettel. The date of the said mortgage was December 1, 1908, and it was intended, as the court found, to cover principal and interest representing two loans evidenced by promissory notes, one dated December 1, 1908, for the principal sum of one thousand five hundred dollars due three years thereafter, and the other for one thousand one hundred and sixty dollars, bearing date April 1, 1909, due two years later. By the terms of the mortgage it apparently covered the west half of section 19, township 2 south, range 1 west, S. B. B. & M., in Riverside County, and was recorded April 8, 1909. The complaint in this action was filed June 30, 1911, and a lis pendens was placed of record on that day. Judgment was given in favor of O. S. Dodds, the plaintiff, and this appeal is by A. Spring, one of the defendants, who claimed rights in the property superior to those of the plaintiff.

It appeared from the findings of the court that G. O. Trauzettel acquired title to the north half of said section 19 prior to August 20, 1908, and remained such owner until October 10, 1910. On December 10, 1910, he parted with his interest in the north half of said section together with other property by a grant deed to William A. Kjellman, one of the defendants in this action.

Prior to the making of the notes and the mortgage in favor of Dodds, the Trauzettels had borrowed from John Galli three thousand dollars, evidenced by a note, payable in three years, bearing date August 20, 1908, secured by a trust deed in which L. W. Clark was named as trustee. On the same day, August 20, 1908, the Trauzettels had borrowed one thousand dollars from Mary Holmes Wilson, evidenced by a note payable in three years and supported by a mortgage of even date. The trust deed and the mortgage were recorded, the former having priority. Both the mortgage and the trust deed were upon the north half of said section 19 and the date of their recordation was August 25, 1908.

Subsequently William A. Kjellman and G. O. Trauzettel entered into correspondence looking to the exchange of the latter's property in California for the former's land in Texas. There was an escrow agreement in writing whereby William A. Kjellman assumed and agreed to pay encumbrances aggregating $8,920 upon the property in Riverside County and other land. The transaction involving the exchange of the lands in Texas for those in California was consummated, and on December 12, 1910, a deed bearing date October 10, 1910, was placed of record. The deed recited that the property conveyed (which was the north half and the southeast. quarter of section 19) was subject to the note for three thousand dollars and the trust deed in favor of Galli, the note for one thousand dollars and the mortgage to Mary Holmes Wilson. It also specified liens of a mortgage dated September 16, 1908, to secure the payment of a note of $1,120 in favor of O. S. Dodds, and another dated December 1, 1908, to secure a note of one thousand five hundred dollars, also in favor of the plaintiff. The plaintiff did not seek to foreclose the mortgage dated September 16, 1908, but as shown by the testimony and found by the court, the note for $1,120 was merged into and paid by the later note for one thousand five hundred dollars.

The court also found that when the mortgages to plaintiff were made the Trauzettels owned only the north half of section 19 and that their intention was to mortgage that part of the section. By an amendment to his pleadings plaintiff had asked for a reformation of the contract in that particular and by the judgment it was reformed as prayed.

Further findings were to the effect that William Kjellman paid to Galli and Wilson the sums due them and thereby satisfied their claims; that after the filing of the lis pendens in this case O. J. Kjellman executed and delivered to A. Spring her note for three thousand dollars, secured by a mortgage on the northeast quarter of section 19; that at that time Spring had no notice of the fact that plaintiff's mortgage was intended to cover the north half of said section; that on November 21, 1912, William A. Kjellman delivered the Galli note and the accompanying trust deed and the Wilson note. to defendant A. Spring, and assigned the Wilson mortgage to said Spring; and that both said notes were then past due; that they had been fully paid and extinguished and together