The opinion
By the Court, Temple, J.:
A rehearing was granted in this case for certain purposes indicated in the opinion rendered on the petition for rehearing. Eo brief has been filed by respondent on the rehearing, except on the part of certain infants, by Benjamin Hayes, their guardian ad litem. In this brief no attempt is made to show that the infants have rights which ought to be saved by decree; but objection is made to the manner in which the appeal is taken. The affidavit of Glassell is sufficient to show service of the notice of appeal upon Benjamin Hayes, and it was not necessary that he should be named as guardian ad litem. The record shows that he had appeared and represented the infants in that capacity. There being no provision in the mortgage for that purpose, the plaintiff is not entitled to counsel fees.. The agreement to pay the taxes upon the mortgage was part of the consideration for the money obtained upon the mortgage, and is binding upon Mrs. Carrillo, and the plaintiff is entitled to retain that amount from the proceeds of the sale.
The judgment below is reversed, and the District Court directed to enter judgment for plaintiffs upon the findings, directing a sale of the premises, or so much thereof as may be necessai’y for the payment of the respective claims properly chargeable thereon, under the views expressed by this •Court, according to their respective priorities; and it appearing that a large amount of irrelevant matter has been inserted in the transcript, it is ordered that the appellant recover but one half the costs and expense of printing the transcript.
Mr. Justice Crockett and Mr. Justice Wallace did not sit in this case.
[The first opinion in this case was delivered at the April Term, 1869. At this time Sawyer, C. J., Sanderson, J.,
*509 Sprague, J., Rhodes, J., and Crockett, J., were the Justices of this Court. The opinion after the rehearing, was delivered at the April Term, 1870, when Temple, J., and Wallace, J,, were Justices, in place of Sawyer, C. J., whose term had expired, and Sanderson, J., who had resigned. For some reason the case was not reported in the 89 Cal., with the other cases of the April Term, 1870.—Reporter.]