—I respectfully dissent.
The trial court made a pivotal finding in this case which in my view compels affirmance of the judgment. The court found: “[T]he Schwenkes had reached an oral understanding with Terry O’Brien, in or about April 1981, that the balance of the Schwenke and O’Brien indebtedness to Pacific Valley Bank was to be the responsibility of the Schwenkes.” Is it consistent for the *148Schwenkes to have agreed to pay off the entire debt balance owing to the bank and then, when pressed to perform their promise, contend that O’Brien’s property was to have remained primarily liable for the debt under Code of Civil Procedure section 726? Of course not! O’Brien’s mortgages and Schwenkes’ promise could not logically coexist. The Schwenkes’ agreement can only be understood as having authorized O’Brien to apply to the bank and to obtain from it a reconveyance of the mortgages, thus leaving the debt unsecured.
As the majority acknowledges, “[s]ince the provisions of section 726 are designed for the protection of the debtor, he is entitled to waive them. (Salter v. Ulrich (1943) 22 Cal.2d 263, 266;..(See also Williams v. Reed (1957) 48 Cal.2d 57, 67 [307 P.2d 353].) The Schwenkes waived the protection of the mortgages by implicitly consenting to their removal by O’Brien. Once this fact is established it is immaterial that the Schwenkes did not personally communicate their consent to the bank.
Cooper v. Burch (1906) 3 Cal.App. 470 [86 P.719], relied on by the majority, actually supports the judgment. Cooper essentially found that the comaker of a promissory note had not waived protection of the security since he was not a party to releases of the security which had been arranged between his comakers and the promisee. The court, however, was careful to point out “but there is no evidence in the record that the defendant Patton concurred in or knew anything about this arrangement.” (Id., at p. 471.) Such is not the case here for the court’s finding discloses that the Schwenkes and O’Brien together set the wheels in motion for release of the mortgages.
I would therefore conclude, as did the trial court, that since the indebtedness was not secured by mortgage at the time recovery was sought, the mortgage having been released with the Schwenkes’ consent, section 726 was simply not applicable.
Respondent’s petition for review by the Supreme Court was denied April 30, 1987.