Tonningsen

This is an appeal by the defendant from a judgment for plaintiff in an action in ejectment. Exception is taken to certain of the findings of fact and it is contended that they do not support the conclusions of law and the judgment.

Since 1904, defendant has been in possession of certain land in San Mateo County, which it used for a cemetery. Its possession was held under certain contracts to purchase, made with the predecessors in interest of the plaintiff, as vendors. These vendors transferred the said property to the Union Trust Company of San Francisco, subject to the rights of defendant, as security for the payment of certain bonds of the vendors. On January 23, 1917, default having been made in the payment of the bonds, the Union Trust Company commenced an action in the superior court in and for the county of San Mateo to foreclose the equity in said property, under the terms of the deed conveying the property to it as security.

There is considerable discussion in the briefs as to whether this conveyance for security should be regarded as a deed of trust or a mortgage. The instrument itself recites that it is a deed of trust or mortgage and provides that in case of default…