Porter

This action was commenced September 15, 1877, by David Porter against Christian Muller to foreclose a mortgage executed by Christian Muller and George Kroeckel on two adjoining quarter sections of land, of which they were equal owners as tenants in common, to wit, the northwest quarter of section 28, and the northeast quarter of section 29, township 2 north, range 8 east, Mount Diablo meridian, to secure their joint debt of $3,000 and interest. Upon the death ,of each original party, pending the action, his legal representative was substituted. The case has been before this court on two former appeals, in each of which a judgment in favor of plaintiff was reversed. (Porter v. Muller, 53 Cal. 677 ; 65 Cal. 512 .) The record on the present appeal presents the following undisputed facts:

*358 Muller and Kroeckel had purchased the land above described from G. H. Tarr, for the price of $8,000, paying one-half in cash, and executing their mortgage to Tarr to secure the balance of $4,000.

Thereafter, February 28, 1874, Kroeckel mortgaged his undivided half of the land to David Porter (plaintiff) to secure his individual indebtedness to Porter in the sum of $4,000, and interest to…