Carr

The facts are fully set forth in the opinion.

J.The facts of this casé are briefly these: Potter and wife were seized of a lot of ground in the city of San Jose, in trust for oné Gordon, who sold the same to Vermuele, the husband of the defendant, and obtained from him a mortgage thereof to secure the payment of the purchase money. Upon failure to pay the purchase money the mortgage was foreclosed and the lot decreed to be sold to pay the lien. Vermuele, by his agent, before the day fixed for the sale, negotiated a loan of money with the complainant to pay said debt and for other purposes, for the- whole of which the complainant was to be secured by a mortgage upon said lot, the complainant having been informed of the intended application of said money. On the same . day and just before the intended sale by the officer, the money was procured ($1200) by Vermuele, who applied $736 of which in discharge of said decree. On the same day, and immediately after the payment of said decree, (being the 1st day of March, 1855,) pursuant to agreement Vermuele made to plaintiff the mortgage on which •fliis suit is brought, his wife, the defendant, residing in this State, but not joining him…