Appeal from the Fourth Judicial District.

These are separate appeals from judgments of the District Court, entered in favor of the defendants and respondents, upon their demurrers to the amended complaints of the plaintiff, in each of the two cases.

The complaints are precisely similar, and, so far as they bear upon the questions raised upon the appeals, state the following facts : That, August 31st, 1860, the defendants, William Gibb and Daniel Gibb, now deceased, but then in life, were partners under the firm name of Daniel Gibb & Co., and by their partnership name of Daniel Gibb & Co., borrowed of plaintiff $25,000, to secure payment of which, the said Daniel Gibb & Co. made and delivered to the plaintiff them forty-eight promissory notes, all dated August 31st, 1860, payable to plaintiff, for six hundred and fifty-seven dollars and fifty cents, the first on the thirtieth day of September, and the remainder on the thirtieth day of each month thereafter, one of which is as follows :

“ 1657 50. San Francisco, August 31st, 1860.

“ On the thirtieth day of October, 1861, without grace, we promise to pay to the Savings and Loan Society or order, at .their office, the sum of six hundred and fifty-seven dollars and fifty cents, value received, with interest thereon at the rate of two per cent, per month from maturity until paid. And we further agree that if this note shall not be paid by us according to its tenor and effect, then all the notes of this series bearing even date herewith and remaining unpaid, shall at the option of the Savings and Loan Society become immediately due and payable to the amount of nineteen thousand, three hundred and sixty dollars, which will be their total value at the maturity of and including this note, with interest thereafter on said total value at the rate of two per cent, per month until paid.

“ The series of notes of which this is one, is secured by mortgage of even date herewith. Daniel Gibb & Co.”

That of the sums secured by these notes including the above note and interest, the amount of $19,360 remains due and unpaid, and with the interest thereon at the rate of two per cent, per month from October 30th, 1860, is now due and payable.

That Daniel Gibb, in his lifetime, to secure the payment of these notes and the said moneys and interest thereon, as mentioned in the notes according to their terms, at the same time with their date, executed under his hand and seal, and delivered to the plaintiff, a mortgage conditioned for the payment of the notes and interest thereon at the rate, times, and in the manner specified in the notes, and according to their conditions, whereby he mortgaged to the plaintiff all that parcel of land, etc.

That, among other things, Daniel Gibb, by his said mortgage, covenanted and agreed that he would pay at maturity all taxes, street assessments, liens, and other incumbrances then subsisting or which might be laid or imposed on the premises, and all taxes which might at any time be laid upon the mortgage or the money secured thereby; and if default should be made in such payments, the plaintiff might pay off at pleasure any such taxes, street assessments, etc., as in the opinion of the plaintiff might in any wise affect or impair the mortgage ; and on all moneys paid out for the purposes aforesaid, interest should be allowed from the date of the several payments at the rate of two per cent, per month, and such payments and interest should be secured by the mortgage.

That, by the covenants and conditions of the mortgage, it. was among other things further agreed, that if default should be made in the payment of any one or more of said notes, or in the performance of any of the covenants, etc., the whole of the notes unpaid at the time should, at the option of the plaintiff, forthwith become due, and legal proceedings forthwith be taken for the foreclosure.

That said Daniel Gibb further covenanted that in such action a receiver should be appointed, etc., with power to collect the rents, etc., until sale of the premises under the decree of foreclosure, and said receiver should hold the same for any deficiency which might exist in case the proceeds of the sale should not be sufficient to pay the amount of the decree and costs, his commissions to be paid out of such rent, etc.

That due demand of the payment of the notes has been made, but Daniel Gibb, in his lifetime, and William Gibb refused, and William Gibb, since the death of Daniel Gibb, still refuses to pay the same, and plaintiff has therefore elected and declared the entire sum to be presently due and payable: of which election and declaration William Gibb, executor of Daniel Gibb, and in his own right has had due notice.

That on the seventeenth day of December, 1861, Daniel Gibb departed this fife, leaving a last will wherein William Gibb was named sole executor, which was admitted to probate, and letters testamentary were issued to William Gibb, who duly qualified and is now acting as such executor.

That the defendants, William Gibb, Ellen W. J. Gibb, and Thos. M. Gibb, minor son of Daniel Gibb, James Paterson and Alexander Forbes have and claim interests in and rights to the premises as devisees of Daniel Gibb and otherwise, which interests and rights are subsequent to and subject to plaintiff’s mortgage.

The plaintiff prays for a receiver, the ascertainment of the amount of all taxes now subsisting, or which may be levied, and that the Sheriff or receiver be directed out of the rents or proceeds of the property, after paying costs of suit, to pay such taxes, etc., and “ that the usual judgment or decree may be made for the sale of the mortgaged premises aforesaid, and for the payment out of the proceeds of said sale, of the amount due the plaintiff for principal and interest on said notes and mortgage, together with costs,” and all amounts paid by plaintiff for taxes, etc.; and if it appear from the Sheriff’s return that there is a balance still due plaintiff, after applying all the moneys, etc., “ that the said estate of Daniel Gibb may be adjudged to pay such deficiency in due course of administration thereafter, and that a judgment may be docketed for such balance and duly certified to the Probate Court;” and that the defendants be barred and foreclosed, etc.

The defendants, William Gibb, executor, etc., William Gibb, James Paterson, and Alexander Forbes, each demurred to the complaints. The demurrer of William Gibb, as executor, was on the grounds, among others—1st, of a misjoinder of parties defendant in this, that as executor he was improperly united with himself individually and as surviving partner; 2d, of improper union of several causes of action, viz.: a cause of action against him as executor upon the mortgage, and a cause of. action against him individually and as surviving partner upon the promissory notes; and 3d, no cause of action. His demurrer in his own right was the same, mutatis mutandis.

The demurrers were, after argument, sustained by the Court, with leave to the plaintiff to amend within ten days, which he declining to do, judgment was entered in favor of the defendants. From this judgment plaintiff appeals.