Appeal from the District Court, First Judicial District, Los Angeles County.

The plaintiffs and the defendant Jean Vignes, were the children of Jean Louis Vignes and Jeanne S. Vignes. Their said father and mother were natives of France. Their father emigrated to Los Angeles, California, about the year 1827, but their mother remained in France, where she died in 1843. The said Jean Louis Yignes, after he came to California, but before the death of his said wife, acquired a tract of land in Los Angeles, called “Aliso,” and the plaintiffs claimed to be entitled to one half of the same as heirs of their said mother. The plaintiffs and defendant Jean Yignes, and their said father, for the purpose of settling this claim, on the 13th of March, 1851, entered into a written contract, by the terms of which the children were to receive three thousand dollars each, and the further sum of five thousand five hundred dollars each, either after or before their father’s death, as he might consider proper. This contract provided that the sum total should be secured by the property called “Aliso.” It was not under seal, but was acknowledged on the day of its date, and recorded in the office of the Recorder of Los Angeles County. The plaintiffs claimed that this instrument was a mortgage. The said Jean L. Yignes died at Los Angeles, January 17th, 1862, and the defendant, Manuel Requena, was his executor. The said Jean L. Yignes, before his death, and on the 3d day of April, 1855, sold the “Aliso” to the defendants, Pierre and Jean Louis Sansevain, for the consideration of forty thousand dollars, and to secure a part of the purchase money .they executed to him a mortgage on the same. This mortgage contained a covenant that the mortgagors would “ pay and discharge all legal mortgages and incumbrances of whatever nature and description upon the aforementioned and described property, at and previous to the present date, whenever the same shall become due.” At the time of the execution of the mortgage by the Sansevains, there was existing and duly recorded, a mortgage on the same property, before then made by the said Jean Louis Yignes to Tobi & Schlessinger, given to secure the payment of the sum of three thousand dollars. The defendants Sansevains, on the 5th day of April, 1863, conveyed the said “Aliso” to the defendant, Rene, for the consideration of thirty-one thousand eight hundred dollars, and his deed was then duly recorded in the Recorder’s office of Los Angeles County. This action was commenced on the 24th day of' March, 1863, for the purpose of having the instrument of March 13th, 1851, declared a mortgage, and of having the same foreclosed, and to recover judgment against the Sansevains, and Requena the executor, for the amount due on the instrument. The defendant, Jean Vignes, declined to become a party plaintiff, and was therefore made a defendant. The Court below gave judgment that the plaintiffs each recover from the defendants, Pierre and Jean Louis Sansevain, and the executor, the sum of five thousand five hundred dollars, with legal interest from January 17th, 1862, and that the plaintiffs take and recover nothing from the defendant Rene. The plaintiffs appealed from that part of the judgment in favor of the defendant Rene.

The other facts are stated in- the opinion of the Court.

[A decision on an appeal of the defendants, Pierre and Jean Louis Sansevain, and Requena the executor, from that part of the judgment against them, is reported ante 376.]