Couts

This action was instituted for the purpose of having two deeds, absolute in form, decreed to be mortgages. Judgment went for the defendant and the plaintiff appeals.

The transactions out of which the controversy arises were between the appellant and Richard 0 ’Neill, who, although of the same- name with the respondent, was the respondent’s predecessor in interest in the land which is the basic subject of the litigation, and who departed this life in 1910. Whenever, in the course of this opinion, Richard O’Neill, or 0 ’Neill, is mentioned, it will be understood that the reference is to the deceased person of that name and not to the respondent.

On November 4, 1895, Richard O’Neill promiséd to lend appellant the sum of $10,000, and, during the succeeding year, redeemed his promise by advancing to ..appellant various sums aggregating a little more than the amount named. On October 16 and November 12, 1896, appellant and his wife executed to O’Neill, in consideration of the loan, their two promissory notes, and they also, on the first-mentioned date, delivered to him their grant deed to certain lands in San Diego County. This instrument is one of those asked by appellant, in his…