Davies

This is an appeal from an action to foreclose a mortgage. It appears that the parties to this action had entered into an agreement for the sale and purchase of a certain piece of real property in Alameda County for the sum of six thousand dollars; that the defendants and appellants paid on account thereof one thousand dollars, and went into possession. In payment of the balance they executed two promissory notes, one for three thousand dollars secured by a first mortgage upon the property purchased, and the other for two thousand dollars secured by a second mortgage. The first mortgage, according to the understanding between the parties to this appeal, was to be owned and held by a certain bank in Oakland, and the second mortgage was to be owned and held by the plaintiff. When this suit was commenced, the appellants learned that the bank in fact was not the owner of the mortgage executed in its name, but held the same for the plaintiff, who in fact had always been the owner of both encumbrances. The appellants claimed in the trial court, and now urge here, that the making of the deed of conveyance and the execution of the two mortgages constituted one transaction, and that the…