Appeal from the Seventh District.

Bill in equity to foreclose four mortgages executed by defendants, Higuera and wife, or for certain other relief.

A stipulation was entered into that the testimony in the case be taken by the Judge of the Court in which the cause was pending, in the city of San Francisco, and that the cause be argued and tried in said city by said Judge, sitting as a Court without jury, and that he file his finding as to all issues of law and fact, as if tried at Martinez, the county seat of the county in which the suit was brought; judgment to be entered in term or vacation upon the findings being filed, and all errors, by reason of the place of trial, being released.

The complaint, verified, sets forth. the notes, obligations and mortgages sued on, copies of which were annexed to and made part of the complaint. These instruments were as follows :

1. A mortgage to Francisco Galindo, dated January 16th, 1854, to secure the payment within one month of the sum of $1,100, with interest at five per cent, a month until paid; recorded January 16th, 1854

This mortgage contains an acknowledgment of the debt and a direct promise to pay.. The mortgaged property is described as follows: “ The rancho called ‘ Santa Clara,’ in the county of Contra Costa, the property of the said Encarnación Soto, in half with her children. We also mortgage all our property, present and future.”

2. Mortgage to plaintiff, dated June 5th, 1854, to secure the payment of $2,000 in sixty days, with interest at seven and a half per cent, a month.

The mortgaged property was described as “ her right and share of the land of the rancho which she owns, situated in the place known by the name of ‘ Laguna de los Palos Colorados,’ which is in the said Contra Costa county.”

3. Mortgage dated September 28th, 1854, to secure the payment of eight hundred and thirty dollars in thirty days, with interest at seven and a half per cent, a month. It recites and recognizes the mortgage of June 5th, for $2,000, and the description of the mortgaged premises is the same as in that instrument.

4. Mortgage dated October 4th, 1854, to secure the payment in thirty days of five hundred dollars, with interest at seven and a half per cent, a month; and also to secure the payment of all the other-debts and moneys in the said notes and mortgages mentioned. The mortgaged premises are described as “ all the right and share of the said Encarnación Soto in and to the land of the rancho of her property in the place known by the name of ‘ Laguna de los Palos Colorados,’ or ‘ Santa Clara,’ which is in the said Contra Costa county.”

It contains covenants of warranty against the acts of the grantors, and also the following clause in ratification and affirmance of the other debts and mortgages, and in further assurance thereof:

“ The indenture of mortgage made to the party of the second part shall be considered as part of the other two mortgages that the parties of the first part have executed to the said party of the second part, one for the sum of $2,000 and interest thereon, on the fifth of June last, and the other on the twenty-eighth of September last proximo, for the sum of eight hundred and thirty dollars and interest thereon.

“ The present indenture of mortgage is intended also to secure the said sum of five hundred dollars, and interest thereon until full payment shall be made, and if so made, then this shall be void; but in case of default in the said payment of five hundred dollars, and the interest thereon, the said party of the second part, his executors, administrators, and assigns, are hereby authorized to sell the property above described, or any part thereof, in the manner prescribed by law, and out of the money arising from such sale he shall retain for himself the sum of five hundred dollars, and the interest thereon, together with the other two mentioned sums; and in addition to this, the sum of $1,100, which was assigned to the said party of the second part by Francisco Galindo, together with all the expenses and costs that may accrue by reason of said sale.” Promissory notes accompanied the last three mortgages.

The complaint alleges the due execution and delivery of all the notes and mortgages, the assignment to plaintiff of the Galindo mortgage, copy of which was also annexed, the ownership of all by plaintiff, and that the same were due and payable.

It sets forth a defect in the certificate of acknowledgment of the mortgage, dated June 5 th, and alleges that all the other mortgages, at their respective dates, were duly and severally acknowledged by the said Higuera and wife before a Notary Public, and certified by him in due form of law, for the conveyance of the separate estate of married women, and thereupon duly recorded in the proper county.

The complaint alleges that the lands and premises in the several mortgages mentioned and described are identical; that the same were commonly called, and publicly known and described under the names “ Santa Clara,” or “ Laguna de los Palos Colorados,” and set forth by metes and bounds a more full and particular description thereof.

That the appellant, O’Donnell, whilst carrying on a pretended negotiation with plaintiff for the purchase of the said notes and mortgages, obtained the temporary possession thereof, and availing himself of such possession, on the eighteenth day of February, 1857, for the nominal consideration of one hundred dollars, fraudulently procured from the said Higuera and wife a conveyance to himself of their equity of redemption in said mortgaged premises, by exhibiting to them the said notes and mortgages, pretending that he was the owner thereof, and would cancel and satisfy the same; that the said O’Donnell thereupon redelivered to the plaintiff his said notes and mortgages, but concealed the fact of his purchase; that in thus procuring the said conveyance, said O’Donnell was plaintiff’s agent; that plaintiff had offered to reimburse him for his expense and trouble in the premises; and that his acts and proceedings were in fraud of the plaintiff’s rights.

Plaintiff annexed to his complaint a copy of the said conveyance from Higuera and wife to O’Donnell, in which the premises conveyed were described as their “ right, title, interest, estate, in and to the one-fourth of the rancho known as ‘ Laguna de los Palos Colorados,’ or Santa Clara,’ in the county of Contra Costa.” Plaintiff also alleges that the other defendants were subsequent incumbrancers, with due notice of his mortgage, and subject thereto.

O’Donnell demurred, on the grounds—I. That the complaint does not state facts sufficient to constitute a cause of action, in this—1st. That the description of the land in the several mortgages was too indefinite to give a lien on any particular tract. 2d. That no facts are set forth sufficient to establish a trust in favor of plaintiff; that if the intention of the complaint be to show fraud, it does not show that any one was defrauded; and if the intention be to establish a sale of the notes and mortgages to this defendant, the complaint is deficient in not setting forth the purchase money to be paid; and in not confining the prayer to a judgment for that sum, and tendering the mortgages. II. That the complaint unites several causes of action in the same count, and joins causes of action requiring different judgments, in this—1st. It tends to establish a trust in defendant O’Donnell in favor of plaintiff, and prays for substitution of plaintiff in place of O’Donnell, with which trust the other defendants have nothing to do. 2d. It tends to establish fraud in defendant O’Donnell, and to cancel the deed to him, which affects him only of the defendants. Sd. It asks to foreclose a mortgage against all the defendants—making three different judgments.

There is no entry in the record showing that, the demurrer was overruled ; but among the grounds of appeal, one is, “ the ruling of the Court on demurrer, and that the same should have been sustained.”

Higuera and wife made default, some of the other defendants simply denied all knowledge or information, and others still disclaimed.

Higuera and wife made default; Agard, Reid, and Ewell denied allD knowledge or information, and the other defendants disclaimed.

The answer of O’Donnell “ denies the validity of the first mortgage as a lien upon any particular land; ” denies that he acted as the agent of the plaintiff in procuring the conveyance from Higuera and wife, and denies the fraud, but admits all the other material allegations of the complaint. It also sets up other matter in defense or avoidance, not material to state, because not proved, or because not passed on by the Court.

On the trial, before evidence was offered, O’Donnell moved that plaintiff be required to elect which of the remedies set forth in the complaint he would pursue; whether he would consider O’Donnell a subsequent purchaser and incumbrancer, and proceed to foreclose his mortgage, or whether he would proceed against him as having purchased the equity of redemption for plaintiff’s benefit, and seek to be substituted in his place as owner thereof—the remedies being inconsistent, and repugnant to each other. Overruled, O’Donnell excepting.

Plaintiff offered in evidence the three notes and four mortgages, set forth in Spanish, with English translations in the complaint. Defend ant O’Donnell objected, 1st, that they were not proven as the notes and mortgages of Higuera and wife; 2nd, that the mortgages were not made in the name of Mrs. Higuera, but of “ Soto ; ” 3rd, that they are not properly acknowledged and certified ; 4th, that they are void as to third persons, for uncertainty of description of the land ; 5th, that the record of them in the Spanish language does not impart notice. Objections overruled, O’Donnell excepting. The notes and mortgages were then read in evidence. Plaintiff then introduced various witnesses, O’Donnell excepting, to prove the boundaries of the land, as described in the mortgages, and they testified, in substance, that the names of the land as stated in the complaint were well known, and indicated definite boundaries, which the witnesses gave.

Evidence was also given, O’Donnell excepting, of the custom among native Californians for wives to retain their maiden names, and sign them, unless requested to sign in the name of the husband.

It was proven that O’Donnell went with the notes and mortgages to Higuera and wife, represented himself to be the owner thereof, that suits could be brought on them, but that her interest was small, and that he would rather give her something than the lawyers. It was finally agreed that O’Donnell should give one hundred dollars cash, and a deed of three hundred acres of the land, for a deed of the whole tract to himself. O’Donnell, during the negotiation, showed Higuera and wife a mortgage from them to himself, which they admitted to be correct, complaining at the same time of plaintiff’s mortgages not being good, and as for too much—more money than they received.

Defendant introduced a witness, who stated he had never heard the land, described in the mortgages, called “ Santa Clara,” etc.

A decree was rendered in favor of plaintiff for the sum of $17,286 against Higuera and wife, with foreclosure against all the defendants, and a sale of the premises, subject to redemption, and execution for the balance. The decree recites that the cause having been tried before the Court without a jury, by consent, and the allegations and proofs of the parties being heard, and the Court being satisfied that there is still due plaintiff from defendants, Higuera and wife, upon the said notes and mortgages, the sum of $17,286 25 ; that the said mortgages were duly executed by the said Higuera and wife ; that from the date of their execution they were valid liens and incumbrances upon the property particularly described in the complaint, of which the said defendants had due notice, and that none of the said defendants, except the said Higuera and wife, had any interest or right in the said premises, except such right or interest as had been acquired by them subsequent to the lien of said mortgages, and with notice thereof, and subject thereto.

O’Donnell alone appeals, having first waived a new trial. Higuera and wife filed a release of errors and waiver of appeal. Prior to the taking of the appeal by O’Donnell, the judgment was executed in part by a sale of the premises for $1,000, and the time for redemption having expired, the Sheriff has since executed his deed to the purchasers.