Appeals from, the District Courts of the Seventh and Twelfth .Judicial Districts, Counties of Marin and San Francisco,

'These three cases were argued together, as they all grew out ■of the same transaction. The first of the actions was ejectment, brought by plaintiff against defendants, to recover a tract of land in Marin county, tried before the District Court without a jury. The Court rendered a decision in favor of defendants, against plaintiff, whereon judgment was entered. The plaintiff appealed from the judgment, upon the facts as found by the District Court, by which it appeared as follows :

Both parties claimed to derive title to the premises from Antonio M. Osio. On .the fifth day of December, 1851, Osio was indebted to George W. Bird, by a promissory note, made by Osio, payable to Bird, bearing interest at five per cent, per month.

To secure the payment of this note, with interest, Osio mortgaged to Bird the premises in controversy. Bird assigned the note and mortgage to Jonathan Edwards, and Edwards assigned them to Thomas G. Cary. The mortgage and the assignments were duly recorded in the office of the county recorder of Marin county.

After the note and mortgage were executed and delivered, and before the foreclosure of the mortgage, Osio sold and conveyed the premises mortgaged to Andrew Randall. In September, 1853, Cary commenced an action for the recovery of the amount due on said note, and to foreclose the mortgage. Osio and Randall were the parties defendants in such action. On the fourth of December, 1854, it was ascertained and adjudged that there was due on the note $8,400, and $295 costs, and a decree was then entered for the sale of the premises, and the application of the proceeds of the sale to the payment of the amount found due. The decree contained a clause barring and foreclosing the equity of redemption of said Osio and Randall, and all persons claiming by, through, or under them, or either of them, in"and to said mortgaged premises, subsequent to the commencement of the action. From this judgment and decree, Randall appealed to the Supreme Court. At the April Term, 1856, the appeal was dismissed, with twenty per cent, damages.

On the fourteenth of June, 1856, the premises were sold as directed by the decree, and purchased by said Cary, for $16,000, leaving due him a balance on the judgment. On November .18,1854, Jesse Smith recovered a judgment in the District Court of the Fourth District against said Randall. A transcript of the docket of this judgment, duly authenticated, was filed in the recorder’s office of Marin county, on the twentieth of February, 1855. Execution was issued on the Smith judgment, and on the twelfth of March, 1855, Randall’s interest in the premises was sold to the defendant Richards for $2,000, and certificates of sale issued. On the ninth of February, 1856, no one having redeemed, the sheriff executed a conveyance to Richards.

On the thirtieth day of January, 1855, McMillan recovered a judgment against Randall -in the Fourth District Court, a transcript of the docket of which was filed in the recorder’s office of Marin county, on the seventh day of February, 1855.

On the twenty-first of July, 1855, McMillan recovered another judgment against Randall in the Twelfth Judicial District Court, a transcript of which was immediately thereafter filed in the same recorder’s office.

On the twelfth of January, 1856, an execution was issued on the first of McMillan’s judgments, and the interest of said Randall in said premises was sold on such execution, on the seventeenth of March, 1856, to McMillan, for $2,000, and a certificate of sale issued ; and no one having redeemed, the sheriff, on the twenty-sixth of December, 1856, executed a deed to McMillan.

On the twelfth of December, 1856, McMillan, with his attorney, Mr. Shafter, presented himself before the sheriff of Marin county, claiming to redeem the premises, from the sale made under the said decree .of foreclosure, by virtue of his judgments against Randall, which he claimed were liens on the property; and requested the sheriff to make up the amount necessary to redeem; at the same time serving upon the sheriff a notice of redemption, accompanied with his affidavit of the amount due upon said judgments, and duly certified copies of their dockets. After some objection, the sheriff consented to make up the amount; and on the day following, when called on again, he reported the amount at $24,146 08. What then took place is thus stated in the testimony of the sheriff on the trial:

“ Mr. Shafter said that was too much; that the amount required would not amount to seventeen thousand dollars, but he would pay whatever sum I demanded, and'insisted 1 should name the amount. He paid me the amount, twenty-four thousand one hundred and forty-six dollars and eight cents; he protested against' paying the amount; said it was too much; it was at the same time, in the office; he requested me to give a statement of the items, as I figured it up; there was a written protest served at the time Shafter asked me for the certificate; I think he prepared the certificate; I signed it; Shafter told me probably that was not the end of the matter, and requested me to deposit at Garrison & Co.’s, to save the interest during the litigation. About one week after, I deposited a portion with Tallant & Wilde, and a portion with Parrott & Co. * * I mean by protest, only that he said the sum was too much. The written protest was after I had counted the money, and found it correct. I read the certificate and signed it; can’t say whether certificate was executed before protest or after. * * I knew it to be

correct. I selected my own bankers; Shafter advised meas to Parrott. There was no arrangement about the money. Shafter said a portion of the money was borrowed of Garrison & Co.”

The written notice of protest, referred to in the testimony of the sheriff, specified the items to which objéetion was made. After the payment as described above, and at the "same interview, fhe plaintiff requested the sheriff to deposit the money with Messrs. Garrison & Co., bankers at San Francisco, assigning as a reason that a part of the same had been loaned by them at two per cent, a month, and would probably be tied up by litigation for several months, and by such deposit the interest could be provided for. On the twentieth of December, the sheriff proceeded to San Francisco, from Marin county, and deposited a portion of the money with Tallant & Wilde, and a portion with Parrott & Co., receiving certificates of deposit for the same.

McMillan, whilst the sheriff was in San Francisco, commenced an action in the District Court of the Twelfth District, against him, for the recovery of $10,000, as for money had and received by the sheriff, to and for the use of McMillan, and according to the finding of the Court, “ caused the money so deposited to be attached in the hands of the bankers to satisfy any judgment which he might recover in the action,” and which 11 money remained so attached at the commencement and trial” of this action.

On the 17th of February, 1857, McMillan, as plaintiff, commenced an action on the equity side of the Court, against John G-. Hyatt, (the assignee of the certificate of sale, executed to said Cary, and the assignee also of the balance due by the decree after the sale on the foreclosure,) and against the sheriff Vischer, and the bankers with whom he had deposited the money, and others, as defendants; and in such action the plaintiff sued out an injunction enjoining said Vischer from negotiating, or transferring, or in anywise disposing of said certificates of deposit, and enjoining the said bankers from paying the certificates of deposit. McMillan claimed, and stated by his complaint in such action, verified by his oath, that the sum of $6,700, paid to the sheriff, was not due and payable as a portion necessary for the redemption aforesaid, and that the sheriff had no right to have the same; and prayed that a receiver might be appointed to take the custody of the said certificates of deposit, for the purposes of that suit, and to invest the funds pending the litigation—that an account might be taken of the money paid under protest, and that the excess over and above the true amount essential in law to effect a redemption might be decreed to be paid to the plaintiff, with all interest accruing thereon. To the complaint a demurrer was filed and sustained.

The Court found as a fact that of the sum of $24,146 08, paid to the sheriff, only the sum of $17,606 87 operated as a legal payment for the purpose of the redemption, and that the same was insufficient therefor.

On the 19 th day of January, 1857, the said sheriff of Marin county executed his deed of the premises to John G-. Hyatt, in virtue of said sale under gaid decree. The defendants claimed under this deed, and were in possession of the premises at the commencement of the action.

The case of The People ox rel. McMillan v. Vischer, sheriff, ' etc., was a proceeding by mandamus instituted in the Twelfth District Court to compel Viseher, as sheriff, to execute a deed of the same premises to the relator, to which he alleged himself entitled by virtue of his redemption.

The facts in the three cases sufficiently appear in the above statement, and in the opinion of the Court.