Roberts

This is an action for the specific performance of a parol agreement to convey real estate. Judgment was rendered for plaintiff, from which, and an order denying their motion for a new trial, defendants appeal.

Defendants are husband and wife. For the purpose of securing the payment of a certain promissory note Henry B. True executed and delivered to plaintiff Roberts what purports on its face to be a deed of trust in the usual form (except that Roberts, the payee of the note, is made trustee therein with power of sale in case of default in the payment of the said note, but which instrument defendant Henry B. True alleges to have been intended and understood to be a mortgage), whereby he conveyed to Roberts the legal title to the real estate in question. ‘ The note was not paid and Roberts and Henry B. True made an oral agreement whereby plaintiff agreed to surrender the note and discharge such deed of trust, in consideration of which defendant Henry B„ True was to convey the property to plaintiff and plaintiff was to lease the same to him for a term of three years. Pursuant to this agreement plaintiff delivered the note to defendant Mary True, and on January 18, 1898, made the…