The opinion
McKinstry, J., concurring:
In addition to what is said by Mr. Justice McKee, I desire *152 to state the fact that a notice of lis pendens was filed when the bill to foreclose the mortgage was originally brought. The lis pendens did not operate a notice of the suit to E. J. Burtis, who received his conveyance of the legal title from the grantees of the mortgagor after the commencement of the action, because their deed had been recorded before the suit was commenced, and they had not been made parties. (Code Civ. Proc., § 409.)
The commencement of the action against the mortgagor did not keep alive the lien against the mortgaged premises. He had parted with the legal title, and had no interest to protect the premises against the lien. In Wells v. Harter, 56 Cal. 342 , this Court held that the lien of a mortgage becomes extinguished by the lapse of four years’ time, without suit brought. (Civ. Code, §§ 2911, 2922.) More than four years had expired from the date of the note and mortgage when the respondent, E. J. Burtis, and the other respondents were made parties defendant.