McDonnell

This is an appeal from a judgment against defendant and the order of the court denying his motion for a new trial. Since the action was brought defendant died, and in due time an order was made substituting as defendants his executors, and later it appearing that before his death defendant had by deed conveyed the subject of the action to A. F. St. Sure, an order was made substituting him as defendant.

In this opinion, however, whenever we refer to the defendant we mean the original defendant.

The action was brought to quiet the title of plaintiff to a piece of real estate situate in Alameda county against the claim of defendant thereto. The complaint is substantially in the usual form of an action to quiet title, except that it appears therefrom that plaintiff deraigned his title from defendant through a deed of gift executed and delivered by defendant to plaintiff on the tenth day of December, 1903. A copy of the deed is attached to the complaint and made a part thereof.

Upon the trial of the issues presented by the pleadings the court found the facts in favor of plaintiff, and rendered judgment accordingly.

It is not pretended that defendant did not execute the deed set…