Appeal from the Twelfth Judicial District.

. This action is brought by James McCabe against Cyril Y. Grey and his wife, and a subsequent mortgagee, to foreclose a mortgage executed by Grey and wife to one Corwin, the assignor of plaintiff, upon a lot in San Francisco, as security for the payment of $1,150 and interest due from Grey to said Corwin ; and the complaint asks for a sale of the mortgaged property, and a judgment against defendant Grey for any deficiency after application of the proceeds of the sale to payment of the demand.

The answer of C. Y. Grey sets up the transfer to him of the judgments mentioned - in the Judge’s findings copied below, and claims that their amount should be offset against the demand of plaintiff. The case was tried by the Court without a jury, and the following is a copy of that portion of the finding of facts by the Court material to the points involved on the appeal.

“ That the defendants Cyril Y. Grey and Sarah Maria Grey, his wife, duly executed and delivered to Joseph R. Corwin the mortgage described in the complaint and amended complaint in this cause, on the eighteenth day of April, A. D. 1859.- And that said Cyril Y. Grey and Sarah Maria Grey, his wife, on the twenty-sixth day of April, A. D. 1859, duly acknowledged the execution of said mortgage, and the said mortgage was duly recorded in the office of the County Recorder of said City and County of San Francisco, on the twenty-sixth day of July, A. D. 1859.

“ That said Cyril Y. Grey and his said wife were in possession of the lands described in said mortgage, at and before the date of said mortgage, and are yet in possession of the same.

“ That afterwards, to wit: on the thirteenth day of August, A. D. 1859, the said Corwin did, for a valuable and sufficient consideration, execute under his hand and seal, in due form of law, and deliver to the said plaintiff, an assignment of the said mortgage last aforesaid, and all moneys due thereon, and that on the same day last aforesaid, the said Corwin duly acknowledged the execution of said assignment, and that said assignment was duly recorded on the twenty-fifth day of August, A. D. 1859, in said County Recorder’s office, and that said plaintiff was, at the time of the commencement of this suit, and still is, the owner of said mortgage last aforesaid, and entitled to the moneys due thereon.

“ That on the twenty-sixth day of April, 1859, John E. Brophy and John H. Shermier commenced an action in the Twelfth District Court against Joseph R. Corwin, the assignor of the plaintiff, and on the twelfth day of August, 1859, an attachment was issued in said action, and by virtue thereof, on the thirteenth day of August, 1859, all moneys due or to become due by the defendant C. Y. Grey to said Corwin were duly attached by the Sheriff of the City and County of San Francisco.

“ That on the seventeenth day of September, a judgment was recovered in said suit against said Corwin, for the sum of $569, with interest at ten per cent, per annum, and sixty-six dollars costs; and that on the thirteenth day of April, A. D. 1860, an execution was issued on said judgment, and by virtue thereof, the Sheriff of said city and county, on the thirteenth day of April, 1860, attached all moneys due or owing by C. Y. Grey, (defendant) to said Joseph R. Corwin.

“ That the garnishee process issued on the twelfth day of August, 1859, in the suit of Brophy et al. v. Corwin et al., was served on the said Cyril Y. Grey, at eleven o’clock A. M., on the thirteenth of August, 1869, after the execution of the assignment of said Corwin to said plaintiff of the said mortgage, etc., described in the complaint.

“ That on the eleventh day of January, 1859, judgment was recovered in the Justice’s Court of the Third District of the City and County of San Francisco, by J. F. Miller against the said Joseph R. Corwin, for the sum of $101.50 and interest, and nine dollars costs. And thereafter, on the thirteenth day of April, A. D. 1860, an execution was duly issued on said judgment, and by virtue thereof, on said thirteenth day of April, 1860, F. A. Shroder, Constable of the Second Township of said city and county, levied on all moneys-due by C. Y. Grey to said Corwin.

“ That the said judgments in favor of Miller, and of Brophy, and Shermier, were duly sold, assigned and transfered, on the twentieth day of April, 1860, to the defendant C. Y. Grey.

“ That the defendant Cyril Y. Grey had no actual notice that-said Corwin had made any assignment of the indebtedness of said Grey to said Corwin, or of the mortgage to secure the same, until the sixteenth day of May, A. D. 1860, on which day he was notified of said assignment by the plaintiff in this suit.

“ That there is due on the said mortgage so assigned to said plaintiff, the sum of eleven hundred and fifty dollars, principal, and two hundred and ninety dollars and thirty-seven cents interest thereon, up to this twenty-fourth day of December, A. D. 1860, making in all the sum of $1,440.37.”

As conclusion of law, the Court found that the judgments assigned to defendant C. V. Grey could not be offset by him against the plaintiff’s demand in this action, and plaintiff accordingly had judgment according to the prayer of his complaint, from which judgment defendants appeal.