Fonner

The plaintiff brought this action to have his conveyance to defendant of certain real property by deed, absolute in form, declared a mortgage and to quiet bis title thereto.

The trial court found upon sufficient evidence, if it was admissible, that the deed was given to secure advances of money made and to be made by defendant for the plaintiff, subject to certain payments due for money advanced on the mortgage security.

This appeal from the judgment turns upon the question of various matters operating by way of estoppel against the respondent and res adjudícala, to bar the relief granted.

The record presents a complicated story, but we think the case must be decided upon certain considerations presented by the findings and which are alleged to be inconsistent with the judgment.

At the time this deed in dispute was executed the land in question was in litigation between the plaintiff Fonner, who then owned it, and his wife. The wife had sued him for divorce on the ground of extreme cruelty and for an allotment of the property to her as community property. Pending this controversy, and after lis pendens was filed in the divorce proceedings, plaintiff here, who will be hereafter…