This case was decided at the April term, 1863—(23 Cal. 633.) It was then held—all the Justices concurring—that the mortgage sought to be foreclosed was inoperative and could not be enforced. Subsequently the same Justices ordered a re-argument, not, as we understand it, on account of any doubt as to the soundness of the previous decision, but with a view, owing to the hardship of the case, of ascertaining if any modification of the judgment could be made by which the plaintiff might have a remedy in this action. We infer this to be the case from the fact that the counsel were directed by the Court to confine their attention upon the re-argument to the single point as to “ whether the principles of equity would not warrant this Court in declaring that (the mortgage being invalid) the consideration of the deed of Octo*397ber, 1st, 1860, failed, and in consequence thereof plaintiff is entitled to a rescission of the contract in the form of a conditional decree restoring the parties to their original condition.” And the arguments of counsel have been mainly directed to that question.
Upon a review of the case, we are satisfied with the former decision upon the point that the mortgage in question is inoperative and void; and the only question left for our consideration is the one discussed on the re-argument with reference to the judgment to be entered in the case. Possibly a Court of equity, in a proceeding in the nature of that suggested, or some other, would have been competent to afford a remedy to Robinson, or a party succeeding to his rights in the premises. But, however that may be, this is not the proper proceeding. The present action is the ordinary one for the foreclosure of a mortgage. It proceeds entirely upon the theory that there is a debt due secured by a valid mortgage; that the plaintiff is entitled to have the mortgaged premises sold under a decree of foreclosure to satisfy the debt, and to a judgment against the maker of the notes for any balance that may remain unsatisfied. Such is the cause of action alleged, and such the judgment prayed for. But a complaint would have to be framed upon an entirely different theory to reach the case disclosed by this record. Neither of the parties to the original transaction is before the Court. The plaintiff is here simply as the assignee of the notes and mortgage in question. His mortgage proves to be void; and being void, he has acquired no interest whatever in the land. He acquired such rights only as the notes and mortgage, as such, cany with them by the ordinary assignments of such instruments. He has not, either in law or equity, succeeded to all the rights held by Robinson by virtue of his having been the owner of the premises in question, and of his having conveyed them without obtaining the stipulated consideration.
Admitting that Robinson, either on the ground of fraud, or want of consideration, or otherwise, might have obtained a conditional decree of the Court for a payment of the balance *398of the price, or in default thereof, for a rescission of the contract of sale and a reconveyance of the premises upon such terms as the Court might adjudge to be just, still such right of action was not expressly assigned to plaintiff, and it did not pass by the mere indorsement of the notes and assignment of the mortgage in question.
Upon the case disclosed by the record, we cannot perceive that the plaintiff has any remedy at all against these defendants. His remedy—if he has any—is against Robinson. He asked in his prayer the only relief that was competent for the Court to grant on the case stated in his complaint. He could not amend without substituting an entirely new and different cause of action, and one which, it is quite evident, he is not in a position to maintain.
In any proceedings to set aside the conveyance, it would, of course, be necessary that all persons interested should be made parties to the suit, as a decree granting such relief could only be made upon the condition of a repayment of such portion of the purchase money as has already been paid.
This is apparently a case of great hardship, and we regret exceedingly that no mode could be suggested by which a remedy might be afforded in this action. Under the view we have taken, a new trial would evidently be useless.
The judgment is therefore reversed and the Court below directed to dismiss the complaint.