Whaley

The defendants Martha A. Whaley and A. O. Whaley (whose middle initial- is printed in the transcript both G. and C. by mistake), husband and wife, executed on February 19, 1914, a mortgage to appellant upon seven lots in Rio Linda Subdivision No. 2, a portion of the Rancho Del Paso, in Sacramento County, California, to secure the payment of a note for $6,748 due on or before February 19, 1919, with interest at six per cent per year, payable yearly. Said mortgage contained the following provision: “Said mortgagee shall release any ten acre lot or more from the lien of this mortgage upon the payment by the said mortgagors to the mortgagee of one hundred and twenty-five ($125.00) per acre for each acre so to be released.” Said covenant, it will be noticed, did not run to heirs and assigns.

The seven lots so mortgaged ranged in area from 5.689 acres to 13.309 acres, and the total area was 59.889 acres. Subsequent to the execution and delivery of said mortgage the said mortgagors executed and delivered a trust deed to J. R. Hicks, a trustee for Los Angeles Finance Company, and said Whaley and husband, covering the land described in said mortgage, which trust deed recited that it was…