Supreme court of the United States. No. 135. The United States, appellants, vs. John A. Sutter. Appeal from the District court U.S. for the Northern district of California.

696 The United States vs. Sutter.
funding, he the said plaintiff, the amount of all taxes, assessments,
and incumbrances or taxes, in the said sum of six thousand dollars, and interest paid by said plaintiff in pursuance of the premises
in said mortgage, and the interest allowed on the same when the same
should be demanded, then and thenceforth it should be lawful for
said plaintiff to consider the whole amount of the principal sum
and interest mentioned in said bond, with all such payment and interest as aforesaid, as due and payable immediately, and to enter in
and upon the said mortgaged premises, and take possession of and
sell the same, and all benefit and equity of redemption of said defendants, John A. Sutter and Anna Sutter, his wife, of, in, and to
the same, at public auction, under the order and direction of some
competent court, and from the proceeds arising from the sale thereof
to pay the costs and expenses of foreclosing and sale, includ839 ing attorney's fees, allowed at five per cent. upon the amount
of judgment recovered, and the amount of all payments made
by said plaintiff in pursuance of the permission contained in said
mortgage, with all the interest therein allowed, and the amount due
for principal and interest upon said bond, rendering the surplus of
said purchase-money (if any) to said Anna Sutter, her heirs or assigns.
And the said defendants in said mortgage covenanted that the said
mortgaged premises were free of all incumbrances whatsoever, save
and except one certain mortgage, executed on the twenty-first day of
October, A. D. 1852, by the said defendants, John A. Sutter and
Anna Sutter, his wife, to Charles B. Polhemus, for the sum of twelve
thousand dollars; which said mortgage, so made and executed by the
said defendants to the said plaintiff, was duly acknowledged by the
said defendants, John A. Sutter and Anna Sutter, his wife, before one
George C. Gorham, a notary public in and for the county of Yuba,
in the State of California, and was thereafter, to wit, on the
840 26th day of November, 1852, duly recorded in the office of the
recorder of Sutter county, in book A of mortgages, pages 303,
304, 305, 306, in the records of Sutter county.
And the said plaintiff further shows that he is still the owner and
holder of said bond and mortgage, and that the defendant, John A.
Sutter, has not fulfilled the conditions of said bond, and that the whole
of the principal sum therein mentioned, together with the interest on
said sum, according to the terms of said bond, from the 24th day of
April, A. D. 1853, is now wholly due and unpaid to the said plaintiff
from the said defendant, John A. Sutter; and although often requested, the said defendants, John A. Sutter and Anna Sutter, his
wife, have refused, and still do refuse, to pay the same, or any part
thereof.
And the said plaintiff further alleges that the said mortgage hereinbefore specified as having been executed on the 21st day of October, 1852, to Charles B. Polhemus, was, on the 25th day of July,
841 1853, together with the debt thereby secured to be paid, sold,
assigned, transferred and delivered to the defendants above
named, John Q Packard and Edwards Woodruff; and this plaintiff
verily believes that they are still the owners and holders thereof, and