Holmes

This is an appeal by the defendant from an order denying his motion for a new trial, and comes up on a bill of exceptions used on the hearing of said motion. The action is for the recovery of a lot or tract of land on the east shore of Lake Merritt, in the city of Oakland. It is alleged in the complaint that the defendant entered into possession of the premises in question under a lease, for the term of two years, and thereafter remained in possession without the consent of the plaintiff after the expiration of the two years’ term, and refused to surrender possession of said premises after demand therefor duly made. It is averred in the answer that a deed executed by the defendant and wife of the premises in controversy, bearing date August 19, 1895, was not intended as an absolute conveyance, but was a mortgage, and that defendant did not enter into possession under the lease, but had been in possession as owner for years, and continued in possession after the execution of the deed and up to the time of the commencement of the action as the real owner. The court found that on the nineteenth day of August, 1895, the defendant, Joseph M. Warren, and his wife made, executed,…