delivered the opinion of the Court—Cope, J. concurring.

On the 30th day of May, 1858, the' plaintiff was the owner of two and a half shares of stock in this company. A certificate was issued upon each half share. On that day, the company levied an assessment upon the stock of one hundred and sixty dollars to each share, to be paid on the 15th June thereafter. The shares of the plaintiff were advertised for assessments *245 which he had failed to pay, and, on the 16th dune, sold at public auction for six hundred and nine dollars, to one Wright. On the same day, White transferred the shares to W. Whiteman, one of the defendants, at that time one of the Directors and the President of the company. There was proof that Wright bought the stock for Whiteman, and with money furnished him by Whiteman. It is, also, in proof, that Whiteman, in this matter, was acting for one Shellcross, of Sacramento, who sent to White-man seven hundred dollars. The money seems to have been furnished by Shellcross, by an undertaking or arrangement with Smith, or for him, whose note was proposed to be taken for the amount. A paper was executed by Whiteman to Shellcross, as follows:

Shellcross executed to Whiteman a certificate that such stock had been transferred on a promise to retransfer to Whiteman if the note was paid at maturity. The stock was on the books after the sale in the name of Whiteman, and Whiteman transferred to Shellcross. Afterward, Whiteman gave an order on Shell-cross to deliver the certificate pledged to Mrs. Smith, on the payment of the money. Mrs. Smith, sometime afterwards, ten *246 dered to Shellcross payment of the debt, which was refused. The bill charges, that the shares of the stock are greatly more than the debt; and that the defendant has received largely more than enough money to pay off the debt. It prays an account, retransfer and delivery of the stock, etc.

1. There is but little doubt as to the true character of this transaction. It evidently was a mere loan of money by Shell-cross to Smith on this stock—though the process of affecting so simple a result seems to have been unnecessarily complicated. Leaving out all question of the validity of the company’s sale of the stock—which appears to have been in some way defective— the arrangement, by putting the stock in the name of White-man, and his transfer of it, the proposed note of Smith, the accompanying letter, the certificate of Shellcross and the order of Whiteman, all point, with certainty, to the true nature of, and real parties to, the transaction. It was neither more nor less than an hypothecation of stock for the payment of a loan of money. Ho sale, judicial or other, of this stock was made by Shellcross. It still remains in his hands and stands in his name; and it is charged, and not denied, that the dividends received by him on it have been more than sufficient to pay the debt. There is no pretense for saying that this was a conditional sale, for no money was given, or agreed to be given, for the stock'—-no agreement to take it, either for the eight hundred dollars, or for any other sum, at the time of contract. The promissory note was retained; and the language of the instrument, evidencing the intention of the parties, is express, that this stock was intended to secure the payment of the debt. The transaction being a loan, a clause of foreclosure on non-payment, or a provision that the mortgagee might take the property for the debt, would not make the instrument less a mortgage. (4 Kent, 148; 8 Cal. 145 ; Id. 424.)

2. Hor is there any foundation for the argument of Appellant’s counsel that there was a fair and full settlement between White-man and Shellcross. This alleged settlement was not on any new consideration, and not made until the proceeds of the stock had paid the debt. But the Court find, and we think rightly, that Shellcross knew the true relations of these parties, and that the stock was Smith’s. Any settlement, therefore, especially such a *247 settlement, with Whiteman, would be wholly ineffectual to defeat the rights of Smith in the premises.

3. Considering the transaction as a mortgage of the stock, it is scarcely necessary to say that the mortgagee does not get an absolute title to the property by the mere default of payment of the mortgage debt.

4. The position taken by the Appellant, that the plaintiff here cannot recover in this action because the assignment or sale of stock was made to defraud the creditors of Smith, cannot be maintained. If Shellcross could set up any such defense, as applicable to such a case as this, we think that the facts do not warrant it, and they should be very clear to have this effect. The more charitable and more reasonable interpretation of the conduct of the parties is, that Smith found that he could not pay the assessments without getting a loan on the stock; and he could not do this without hypothecating the stock. If he failed to pay the assessments, the stock would be forfeited and valueless to his creditors or himself. It did not hurt the creditors to raise the money in this way, for the stock would be liable to his claim after the money loaned to pay. the assessments had been paid. But even if fraudulent as to the creditors of Smith, who do not seem to be complaining here,"'it was good between the parties—as a note given for tho purchase money of land fraudulently conveyed—and this bill is filed really to enforce the contract between Smith and Shellcross—Whiteman acting as agent of. Smith, and being merely the conduit through which the title to the stock passed.

5. It is insisted that a Court of Equity has no jurisdiction; that a Court of Law could give all the proper relief. But this point is not well taken. Equity is the proper forum to decree an account, to prevent a transfer of the. stock by Shellcross, and to direct a reconveyance; neither of which acts could a Court of Law accomplish.

Decree affirmed.