I think that the action of the plaintiff in interposing an answer in the partition action setting up specifically the bonds and mortgages sought to be foreclosed in this action and asking that it be adjudged that there is now due upon the bonds secured by the said mortgages the sum of $11,000 with interest thereon; that the bank had a lien for the amount so due upon the premises described in said mortgages and in the complaint superior to any other interest therein; that the said premises be sold by and under the direction of the court and that the bank from the proceeds thereof be paid the amount due to it on said bonds and mortgages is not a counterclaim by *667which the plaintiff in this action could enforce its right to have the mortgages foreclosed. The plaintiff owned two mortgages which were liens upon the property sought to be partitioned. One of the owners, a tenant in common of the property, commenced an action to partition it. That action is regulated by chapter 14, title 1, article 2, of the Code of Civil Procedure. Section 1538 of the Code provides who must be made parties in such an action, and the owner of a mortgage upon the property is not one of those mentioned in that section. By section 1539 of the Code, however, it is provided that the plaintiff may at his election make a person having a lien or interest which attaches to the entire property a defendant in the action, and it is provided that in such a case the final judgment may either award to such a party his or her entire right and interest or the proceeds thereof or may reserve and leave unaffected his or her right and interest or any portion thereof; that a person specified in said section who is not made a party is not affected by the judgment in the action. There is no provision in the Code authorizing a person made a party defendant as holding a lien upon the entire property to apply for any affirmative relief, and the court is given no power to award a judgment directing the sale of the property to enforce the lien of a person so made a party defendant to the action, unless a judgment to partition the property was entered. And such affirmative relief to a defendant who is made a party simply as holding a lien upon the property would seem to me to be contrary to the provisions of the Code regulating such an action. The main question in an action for the partition of real property is the title of the various parties who are tenants in common or have an estate or title to the property sought to be partitioned or some portion thereof. Until such questions are determined it is quite apparent from the provisions regulating the entry of judgment that no judgment can be entered. Thus,' by section 1546 it is provided that the interlocutory judgment must declare what is the right, share or interest of each party in the property as far as the same has been ascertained and must determine the rights of the parties therein. It provides that the sale is only authorized where it is found by the verdict, report or decision, or *668where it appears to the court, upon an application for-judgment in favor of the plaintiff, that the property or any part thereof is so circumstanced that a partition thereof cannot be made without great prejudice to the owners; that otherwise an interlocutory judgment in favor of the plaintiff must direct that partition be made between the parties according to their respective rights, shares and interests. There are then detailed provisions for enforcing the actual partition, and sections 1560 and 1561 of the Code provide for the cases in which an interlocutory judgment for the sale of the property can be ordered. • What was evidently intended by these provisions was to allow the court to make a person holding a lien upon the premises sought to be partitioned a party so that such lien could be discharged out of the proceeds of the sale of the property if a sale be ordered; but it could not have been intended that the plaintiff, by exercising that right, could tie up or postpone the right of a person owning the lien upon the property so that that lien, could not be enforced until the owners of the property could dispose of the questions as between themselves as to who was ultimately entitled to either the property or its proceeds. When a person holding a lien upon the entire property is made a party to the action he of course has the right to allege that he has such a hen and ask that his lien be paid out of the proceeds of the sale if one be directed; but such a lienor has no power to intervene in the action for the purpose of enforcing a sale and the court itself has no power to direct a sale unless it appears that the property cannot be actually partitioned. This case is entirely different from the cases cited where in an action to foreclose a mortgage either a subsequent or prior mortgagee is made a party and such subsequent or prior mortgagee comes into the action and seeks to foreclose his mortgage or. enforce his lien. Such a party has a right to ask for a judgment to enforce his lien, and of course would be, where he intervened asking for affirmative relief, concluded by the judgment; but the plaintiff in this action had no option as to whether or not it should be made a party to the partition action, but having been made a party at the election of the plaintiff, it asserted its lien and did and could do nothing else in that action. And when a reasonable time had elapsed to *669allow the parties to that action to proceed to judgment so that the plaintiff’s lien could be satisfied, it certainly was not precluded from commencing an action which it could control and in which it could have a judgment of "foreclosure and sale, whether or not the property was actually partitioned or sold. It seems to me that there is not only an inconvenience but that the danger to a mortgagee is very substantial in holding that a mortgagee should be remitted to the partition action for relief. Plaintiff has a mortgage upon real property payable at a specified time and it is entitled to enforce that mortgage. The questions arising. in an action for the partition of real property are often intricate and the litigation in relation to them is often prolonged, resulting in appeals and other incidental delays. In the meantime the interest is unpaid, the taxes and assessments accumulate, and it may well be that the security of the mortgagee may be substantially impaired. Yet if this principle is applicable a tenant in common by merely making the mortgagee a party can indefinitely delay the enforcement of the mortgage, and, if I am right in the construction of the provisions of the Code there is nothing that the mortgagee can do to protect his interest. Nor do I think any application to the court to dismiss the action as against the mortgagee would be available as the court would only have power to dismiss the action in case the plaintiff unreasonably neglected to proceed, and so long as the action is proceeding in due course in determining the rights" of the several parties claiming interest in the property, I do not see that the court could dismiss the action as against a party defendant who was properly made a party in consequence of the delay in disposing of the questions as between those interested in the property.
I think, therefore, that the pendency of the partition action was no defense to this action to foreclose the mortgage, and the judgment should, therefore, be reversed.
Laughlin and Dowling, JJ., concurred; Hotchkiss and McLaughlin, JJ., dissented.