Fowler

delivered the opinion of the Court. The plaintiff filed his petition in the Court below to recover upon five promissory notes, of $1000 each, bearing interest at the rate of two per cent, per month, and for foreclosure of a mortgage upon lot 121, in San Francisco, to secure the payment of these and other notes, given for its purchase. The defendants pleaded in denial; and by way of special defence, alleged that Smith purchased lot 121 from the plaintiff, for the sum of §18000; and executed eighteen promissory notes of $1000 each, bearing two per cent, interest per month, together with a mortgage upon said *43 lot, in favour of the plaintiff, to secure the payment of the purchase-money; and that seven of said notes had been paid; that the plaintiff had fraudulently represented himself to be the owner of said lot; and that he had no title to it; that the grant of said lot was made by George Hyde, as Alcalde, in 1841; that said Hyde had no power to make such grant; that the same was not in accordance with law; that the plaintiff derived his title from the grantees of Hyde; that Smith was induced to purchase by the fraudulent and erroneous representations of the plaintiff; that the…