Johnston

This is an action begun December 31," 1914, on a promissory note given by defendant to plaintiff. The principal defense is that the note was secured by a mortgage and that the action should have been one of foreclosure.

The note was dated January 23, 1909. The alleged mortgage consists of a letter from the defendant to plaintiff, the body of which reads as follows: “I hereby certify that there is due to you the sum of four thousand dollars. Said sum is secured by a lien upon that certain land comprising 937 acres in the rancho Los Positos, being the same land conveyed to me by Louis Aurreeoechea. The indebtedness is a prior claim to any lien I may have. ’ ’ The letter was not acknowledged nor recorded.

The transactions between the parties of which this letter formed an incident may be stated more at large as follows: The defendant Murphy during or perhaps before the year 1902, acting for one Aurreeoechea, borrowed four thousand dollars from plaintiff, and Aurreeoechea executed a mortgage on a ranch belonging to him to secure payment of the loan. In 1904 Murphy purchased the ranch from Aurreeoechea, and on July 19, 1906, he conveyed it to his wife. This deed was not recorded…