Shores

Defendant appeals from an order denying his motion for a new trial.

The action was one under the provisions of section 3415 of the Civil Code to compel the defendants to re-execute and re-acknowledge a certain deed destroyed by fire. The complaint alleges the conveyance to defendant by Leander Shores of certain real property in Tulare County to secure the payment of four hundred dollars; the subsequent repayment of that sum; the due execution, acknowledgment, and delivery of a deed by defendant to said Leander Shores; the fact that the last named deed was not recorded; its destruction in the great fire at San Francisco, April 18, 1906; the death of Leander Shores and the distribution of his estate to the plaintiffs; the subsequent discovery by plaintiffs of the former existence and destruction of the deed; and the unsuccessful demand by them-that defendant should replace the destroyed instrument with a similar deed to them. Defendant acknowledged the making of the original deed of reconveyance, but denied the repayment of the indebtedness; and alleged that the deed was placed in the hands of Leander Shores with the express understanding that such act should not take effect as a…