Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.

On the 11th of ¡November, A. d. 1854, the defendants Thomas Brady, and Josephine A. Brady, his wife, made and delivered to the plaintiff the following promissory note:

“Twelve months after date, without grace, for value received, we jointly and severally promise to pay to ¡Nicholas Luning, or order, nine thousand dollars, with interest at two and one-half per cent, per month, payable monthly, in advance, till paid; and if default be made in payment of interest on any of the days when the same becomes due, the principal sum may be deemed due and collectable at once, at the option of the holder of this note.

(Signed) “ Thomas Brady,

“Josephine A. Brady.

“San Francisco, ¡NTov. 11, 1854.”

On the same day, to secure the payment of the principal and interest of the above note, the said Thomas Brady, and Josephine Brady, his wife, executed, acknowledged, and delivered to the plaintiff, an indenture of mortgage upon certain real property, situated in the city of San Francisco, which mortgage was duly recorded in the office of the recorder of San Francisco county.

The defendant Edward Gilson claimed an interest in the premises subsequent to the execution of the mortgage.

On the 11th of October, 1855, the defendant Thomas Brady obtained a decree discharging him from his debts, including the above note among the number, under the act entitled “An Act for the relief of Insolvent Debtors, and protection of Creditors,” passed May 4,1852.

The note not being paid, the plaintiff, in September, 1857, instituted suit to foreclose the mortgage, and for the sale of the mortgaged premises, making Brady and his wife, and Edward Gilson, defendants.

On the 6th of February, 1858, the plaintiff obtained, in the foreclosure suit, a decree adjudging that the plaintiff recover of the defendant Josephine the amount of the principal and interest due on the note; and that the mortgaged premises be sold, and the proceeds be applied to the payment of said amount; and that any surplus remaining, be paid into Court; and that if there were any deficiency, after the application of such proceeds, that the said defendant Josephine pay the same; and that the plaintiff have execution therefor; and that the plaintiff recover his costs and disbursements in the suit, against all the defendants.

From this decree, the defendants appealed.