Hooper

This is an appeal from an order granting defendants a new trial. "

The action is in ejectment for the recovery of a tract of land containing about forty acres, situated in the city and county of San Francisco. The original plaintiffs were C. A. Hooper and T. M. Osmont, but Osmont having died since the trial the other plaintiffs were substituted. Defendant Young is simply a tenant of defendant Webber.

This is the second appeal in this case. Upon the first appeal plaintiffs claimed title under a patent to one Wagner, which was held void, while defendants claimed title under a patent to one Weaver. (Hooper v. Young, 140 Cal. 274 , [ 98 Am. St. Rep. 56 , 74 Pac. 140 ].)

The Weaver title on the fourteenth day of January, 1873, was vested in one J. W. Shanklin, who on that day conveyed, for the named consideration of $1,500, to Wm. B. Swain. This deed was duly recorded on the same day. Swain conveyed to Webber by gift deed dated and duly recorded December 22, 1892.

On the first trial plaintiffs also claimed that the deed from Shanklin to Swain was a mortgage to secure $700, loaned by Swain to Meeks, with which to in part purchase the property, and that as the debt had long since…