Appeal from tbe District Court of tbe Third District, Monterey County.

Tbe facts are stated in tbe opinion.

First.- — It is averred in the answer tbat tbe whole tract contains six thousand four hundred'add fifteen and ninety-six one hundredths acres, and it is denied that plaintiff had in possession more than one thousand acres; and yet the Court, in a bill in equity to quiet title, decrees in favor of the plaintiff for the whole quantity and without hearing testimony. This was clearly error. (Rico v. Spence, 21 Oal. 504; Lyle v. Rollins, 25 Id. 437; Ferris v. Irving, 28 Id.-645; Reed v. Galderwoocl, 32 Id. 109.) In a suit toquie'k title to a ranch, it must be considered as brought to quiet title to that portion only of which the plaintiff is in possession, (Gurtis v. Sutter 15 Gal. 254; Sepulvedas. Sepulveda, 39 Id. 13.) And such possession must be an actual possession— a possessio fedis — an actual occupancy and subjection of the land to the will of the plaintiff, to the exclusion of all other persons. (Sepulvedas. Sepulveda, supra.)

Second — Assuming what the motion admits, that the deed of September 7th, 1860, from José Antonio to Carlos Espi-nosa, was intended and understood by the parties thereto as a security for the debt, and that both the debt and the equity of redemption were barred by the Statute of Limitations; still we say, that the Court was in error in giving judgment for the plaintiff on the pleadings, and would have been wrong even if these facts had been established by proper evidence.

By section 260 of the Practice Act, it is provided that “ a mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale.”

It has been held by this Court continuously from Pierce v. Robinson, (13 Cal. 17,) decided at the April Term, 1859, down to the present time, ‘ ‘ that parol evidence is admissible in equity to show that a deed absolute on its face was intended as a mortgage, and that such evidence is not restricted to cases of fraud, accident or mistake in the creation of the instrument.” (Jackson s. Lodge, 36 Cal. 47.)

And it has further been held, in numerous cases, that “such evidence in this State, under our system of practice is admissible at law as well as in equity.” (Jaclcson v. Lodge, supra; Johnson v. Sherman, 15 Cal. 291; Cunningham v. Hawkins, 27 Id. 606; Hopper v. Jones, 29 Id. 18; Polhemus v. Trainer, 30 Id. 687; Sears v. Dixon, 33 Id. 332; Gay v. Hamilton, Id. 690.)

It has further been decided by this Court, that “in this State it is now well settled by a long and unbroken line of decisions, from McMillan v. Bicharás, (9 Cal. 411,) down to the present time, that the mortgagee has no title or estate in the land, but only a security for a debt.” (Jackson v. Lodge, supra; Naglee v. Macey, 9 Cal. 428; Haffley v. Maier, 13 Id. 13; Johnson v. Sherman, supra; Goodenow v. Ewer, 16 Cal. 461; Fogarty v. Sawyer, 17 Id. 589; Cunningham v. Hawkins, supra; Bloodworth v. Lake, 33 Cal. 264;) and “numerous other cases.”

And “that in this State no title in reality passes to the grantee, even by a conveyance absolute in form, when the purpose is security.”

“Nor can possession under the mortgage affect the nature of the mortgagee interest; it does not abridge or enlarge his interest, or convert what was previously a security into a seizure of freehold.” (Jackson v. Lodge, supra.)

• First — The statute does not require a plaintiff in an action to quiet title, to have the exclusive possession of the land, the title to which he seeks to quiet, and the case of Sepul-veda v. Sepulveda (39 Cal. 13,) does not decide that he must. It only says that a promiscuous roaming of a lot of cattle in common and mixed with those of others, over a tract of land does not constitute such a possession as against co-tenants as will bar their claim, or entitle the plaintiff in that case to maintain that action, a ease in no feature analogous to the one at bar. Now, if one tenant in common can maintain ejectment against a person wrongfully in possession of land in which he has an undivided interest, of course he can maintain an action and have a decree to remove a cloud or cancel a deed affecting that interest.

Second — The denials and averments in the answer of defendant herein, couched in the language “he says,” are frivolous, and neither deny any allegation of the complaint, or tender any issuable fact as a defence. (Arthur v. Brooks, 14 Barb. 533; Blalee v. Eldred, 18 How. P. R. 240.)

Third — Any action or cause of action, in favor of defendant, or his grantor, was barred by the statute of limitations, long before the deed to Gregory and the commencement of this action. And to prove this latter proposition, it will be observed that no note, or other written obligation, to evidence the debt, from José Antonio to Carlos, was ever executed, and the money became due as soon as loaned, and the statute ran against it from the date of its loaning. Supposing it, then, to have been loaned on the same day that the deed was executed, (September 7th, I860,) the debt was barred on the 8th of September, 1862. It is not the case of a mortgage in form, without a note, but reciting the debt in the body of the instrument, so as to bring it within the four years limitation; and such being the case, the right to redeem was also barred at the same time that the debt itself was barred. (Arrington v. Liscom, 34 Cal. 368.)

On the authority of the case last cited, it will be seen that the plaintiff's title and undenied adverse possession entitled her to the decree; and for the further reason that, as the deed of September 7th, 1860, vested the plaintiff’s testator with the legal title, and as his demise transmitted it to her, she had a right to have anything, which might be a cloud on it, forever removed. (Dane v. Zinego, not reported; JBagar v. Schindler, 29 Cal. 49.)