Appeal from the District Court of the Third Judicial District, County of Santa Clara.

This was an action of ejectment brought by the plaintiff, W. L. Henderson, to secure the possession of a tract of land in Santa Clara county. The evidence shows, that one Samuel Henderson, in November, 1852, purchased the land in controversy of the defendant; that the purchase was made principally upon credit; that at the time of said purchase, he was put in the possession of the land by Grewell, the defendant; that when he went into the possession thereof, his brother, the plaintiff, went with him, and resided on said land, with the understanding that the two should work the land on joint account; that shortly after they thus were in possession, Samuel Henderson abandoned the place, in June, 1853, and went into a different part of the state to reside ; that plaintiff remained in full possession of the premises until June, 1855, when he was ejected by defendant; that when Samuel Henderson left the land, he, without the knowledge of plaintiffj attempted to execute a mortgage on the land to Grewell, to secure the unpaid purchase-money,' which was as follows:

This indenture, made the fourth day of January, 1854, between Jacob Grewell of the first part, and Samuel M. Henderson of the second part, witnesseth: That the said party of the first part, for, and in consideration of, the sum of twenty-five hundred dollars to him in hand paid, the receipt whereof is hereby acknowledged, hath bargained, sold, and confirmed, and by these presents doth bargain, sell, and confirm, unto the said party of the second part, and to his heirs and assigns for ever, all that certain tract of land situate and bounded as follows, to wit: On the north, by Dr. Bascom’s claim, on the east by Mr. Edwin Knapp’s claim, on the south by Austin’s claim, on the west by Asa Grewell’s claim:

To have and to hold the above-bargained premises to the said party of the second part, his heirs and assigns, to the sole and only proper use, benefit, and behoof of the said party of the second part, his heirs and assigns, for ever.

Provided, always, and these presents are upon the express condition, that, if the said party of the second part pay to the said party of the first part the just and full sum of twenty-five hundred dollars, on or before the first day of May, whicli will be in the year a. d. 1854, with lawful interest until paid, according to the condition of two several notes, bearing even date herewith, executed by the party of the second part to the party of the first part, then these presents and the said notes shall cease and be null and void.

But in case of the non-payment of the said sum of twenty-five hundred dollars, or any part thereof, so to become due at the time or times above limited for the payment thereof, then, in every such case, it shall and may be lawful for the said party of the first part, his heirs, executors, administrators, or assigns; and the said party of the second part doth hereby empower and authorize the said party of the first part, his heirs, executors, administrators, or assigns, to enter and possess the aforesaid promises, with the appurtenances thereunto belonging.

Made and subscribed in the State of California' and county of Santa Clara, on the fourth day of January, a. d. eighteen hundred and fifty-four.

In witness, I hereunto afiix my hand and seal.

Samuel M. Henderson, [l. s.]

State of California, ) County of Santa Clara, j

. Be it remembered, that on this fourth day of January, a. d. 1854, personally appeared before me, the undersigned, a Rotara Publick within and for the County and State aforesaid, Samuel M. Henderson, personally known to me to be the identical person whose name is subscribed to the foregoing instrument of wrighting, and acknowledged the same to be his signature, and that he executed the same for matters and things therein contained.

Given under my hand and seal the day and year above written, “ turn over for the name.”

Caswell Davis, Rotara Publick.

Filed for record at 5J o’clock, p. m., January 4, 1854, and recorded in Book B of Mortgages, pages 169 and 170.

S. A. Clark, Recorder.

By F. Lewis, Deputy.

Afterwards, on the second of November, 1854, Grcwell commenced an action against Samuel Henderson, in the District Court, to foreclose this pretended mortgage. The plaintiff was not a party to this suit. The summons therein was served by by publication, and on the twenty-seventh of April, 1855, judgment was had by default, and a decree rendered for the sale of the land, and that the sheriff should put the purchaser into possession. From this judgment Samuel Henderson appealed to this Court, and while said appeal was pending, the sheriff, under the decree^ sold the land to defendant, and put him into possession by ousting plaintiff. This was prior to the expiration of the six months allowed for redemption.

The judgment in the case of G-rewell v. Henderson, was after-wards reversed by this Court, on the ground that the publication of notice was insufficient.

On the trial of this cause the defendant introduced in evidence the judgment-roll and proceedings in the case of Grcwell v. Henderson, which embraced the instrument or mortgage, and relied upon both the decree in'that case and the instrument in writing, to justify his re-entry upon the premises, and his ouster of plaintiff. The Court, among others,, gave the following instruction to the jury, under the exception of defendant’s counsel:

“ That the instrument read in evidence, purporting to be a mortgage, was not in law a mortgage; and that it was not properly acknowledged; and that, although recorded, it was insufficient to impart notice to the plaintiffs of its contents.”

The jury found a verdict for plaintiff. Defendant then moved for a new trial, which being granted, plaintiff took this appeal from the order granting the ne-^r trial.