Appeal from the District Court of the Third Judicial District, Monterey County.

This was an action to quiet the plaintiff’s alleged title to the Rancho “Moro y Cayucos,” in San Luis Obispo County, to set aside a deed thereto made on November 24th, 1857, by James McKinlay to his wife Carmen Amesti de McKinlay, and for general relief. The defendants answered, and among other things set up, by way of cross-complaint, that plaintiff held the possession of said property as a lessee, and also held the legal title, under a Sheriff'’s deed, by way of mortgage, or in trust, to secure certain advances made by him; and they prayed for an account of the moneys due him; also, for an account of the rents due them; also, that plaintiff should be enjoined from asserting title against them, or right of possession, except as lessee of an unex'pired term, and compelled to convey to them the title acquired under the Sheriff’s deed, and for general relief. The action was originally commenced in 1865, in the District Court of the First Judicial District, for San Luis Obispo County, but seems to have been afterwards transferred to the District Court of the Third Judicial District, for Monterey County, where it was tried, and findings filed on September 22d, 1869.

From the findings it appears, among other things, that in 1857 James McKinlay, the owner of the ranch in question, being involved in certain litigation, conveyed to his wife the whole of that part of the ranch known as the “ Cayucos,” and one half of that part known as the “Moro,” in trust, to receive and apply the rents, issues, and profits to her support and maintenance, and to the support, maintenance, and education of the children then born or which might thereafter be born unto them; that this deed was made with intent to hinder, delay, and defraud one Jane Allen in enforcing any judgment which she might recover in an action brought by her and then pending against him, but that neither his wife nor the children knew of any such intent or were privy to it; that Jane Allen afterwards recovered judgment, upon which execution was issued, and all the right, title, and interest of James McKinlay in said ranch was sold thereunder, and a Sheriff’s certificate of sale issued to her; that under these circumstances, and while affairs were in this condition, on December 29th, 1859, James and his wife leased the ranch (except three hundred acres of arable land, which,

with the privilege of pasturage on the ranch for two hun-. dred or three hundred head of cattle and horses and their increase, they reserved to themselves) to Domingo Pujol, the plaintiff, for the term of six years from March 1st, 1860, with the privilege of surrendering it at the end of three years—the plaintiff to deliver to them, as rent, two hundred calves (one hundred heifer and one hundred bull calves) annually, and to pay the taxes; that plaintiff entered into possession of the ranch, under the lease, on March 1st, 1860, and stocked it with cattle and horses belonging to the firm of Sanjurgo, Bolado & Pujol; that when the time for redemption from the Alien sale was about expiring, James applied to Pujol for a loan of money to redeem, which the latter at first refused to make, on the ground that James had conveyed to his wife and children, but-upon James’ assurance that he had made that conveyance for his own ends, plaintiff, on June 19th, 1860, made him a loan of two hundred dollars, to secure the payment of which, with interest thereon, at the rate of two and a half per cent per month, he took a note and mortgage on the ranch, and at the same time, and simultaneously therewith, the two entered into a written agreement to the effect that Pujol was to redeem the ranch from the Allen sale, and after the redemption loan a further sum, which, with the redemption money and money loaned, would make up an amount of three thousand dollars, for which James was to give his note, bearing interest at two and a half per cent per month, compounding every three months, and a mortgage, executed by himself and wife, upon the ranch to secure the same; that the plaintiff did r.edeem from the Allen sale, and afterwards, on November 14-th, 1860, there having been no redemption made from him, the Sheriff executed his deed for the ranch to Pujol, which was duly recorded; that Pujol did not offer to pay to James the additional sum necessary to make up the amount of three thousand dollars contemplated in the agreement,

and the note and mortgage therein provided for, though executed and ready to he delivered on the payment of such additional amount, were never in fact delivered or tendered; that the plaintiff remained in possession of the ranch, but never paid any rent, nor was any rent demanded of him; that- in May, 1861, James’ indebtedness to the plaintiff, or rather to the firm of Sanjurgo, Bolado & Pujol, was two thousand nine hundred and sixty-five dollars and sixty-five cents for redemption money and money loaned, with interest, and they proposed, upon the payment to them of three thousand dollars and the release of the plaintiff from paying rent for the ranch for a number of years, to reconvey the ranch to him, which proposition he agreed to, but failed to raise the necessary money; that on further negotiation it was agreed that James should give a note, by hilnself and wife, for three thousand dollars, bearing interest at two and a half per cent per month, and a mortgage on the ranch, by both, to secure it, and receive a reconveyance, and the papers were accordingly prepared, but, when the parties met to execute them; James refused to do so, and the transactions of the parties remained unsettled; that in March, 1862, plaintiff, while still in possession of the ranch, except the portion reserved, commenced an ejectment suit in San Luis Obispo County, against James, to recover possession of the ranch and damages, and about the same time, but after James was served in that suit, plaintiff wrote to him to go to Monterey, where he would meet Bolado, his partner, who was authorized to make a settlement of the matter in dispute; that James proceeded to Monterey and found Bolado, and various negotiations took place,.which resulted in no definite settlement; that while James was absent, engaged in the negotiations pending, a default was taken in the ejectment suit, a judgment entered against him, a writ of restitution issued, and a return made by the Sheriff of its execution “by dispossessing the defendant James and delivering peaceable possession to the plaintiff;” that the ranch continued to be assessed to James, and he paid the taxes; that in October, 1864, James being in possession of the portion of the ranch reserved in the lease, the plaintiff commenced an action of forcible entry and unlawful detainer against him, in which he recovered judgment, and on June 16th, 1865, a writ of restitution, issued thereon, was executed by the Sheriff “ by causing the plaintiff to have possession of the premises described in the writ;” and that the next day the plaintiff commenced the present suit.

As conclusions of law, the Court below found that the deed of trust to Carmen Amesti De McKinlay was delivered before the plaintiff had acquired any title to the ranch, and that it vested title in her as against all persons, but creditors of her husband, subject to any liens upon it against him, and to the right of his creditors to attack it as fraudulent; that plaintiff was not a creditor at the time of its execution, and therefore not in a position to attack it as fraudulent; that on the redemption from the Allen sale plaintiff became subrogated to the position of Jane Allen, but subject to the relation between him and the defendants created by the agreement under which he became such redemptioner; that by virtue of the lease, entry, and possession under it, there having never been any surrender, plaintiff was estopped from denying Mrs. McKinlay’s title; that the redemption from the Allen sale was for the benefit of the defendants, and the deed obtained from the Sheriff" in the ejectment case vested title in the plaintiff only in trust, until the debt for three thousand dollars should be secured by note and mortgage; that defendants were not in default for not tendering the note and mortgage, for the reason that plaintiff" did not tender the sum necessary to make up the amount of three thousand dollars, as contemplated by the agreement; that the relations of debtor and creditor still existed; that the judgment in the ejectment suit not being fraudulent, nor anything having been done to prevent the defendant therein from putting in an answer and defending the case, was conclusion of title in fee as against James, and as to him merged the term of the lease to plaintiff, but did not affect the rights of Mrs. McKinlay or her children; that consequently plaintiff was not entitled to the relief demanded; that defendants, on their cross-complaint, were entitled to an account of the rents of the ranch from the date of the lease, and also to an account showing the moneys advanced by plaintiff for redemption, loans, and taxes, and the interest thereon; that upon payment of the amount found due the plaintiff on such accounting, defendants would be entitled to a reconveyance, and that the matter should be referred to the Court Commissioner to state the accounts.

The Court Commissioner, in stating the accounts, found that the amount advanced by the plaintiff for redemption was two thousand and forty-six dollars, the amount loaned two hundred dollars, and the amount paid for taxes nine hundred and sixty-four dollars and sixty-five cents; that plaintiff was entitled to interest on these advances at the rate of two and a half per cent per month, compounding quarterly, amounting in all to thirty-five thousand five hundred and forty-four dollars and forty-eight cents; that the defendants were entitled to credit for the value of the calves reserved as rent as the same became due, with legal interest thereon, amounting to two thousand and eighty-four dollars and seventeen cents, to James McKinlay, up to the judgment in ejectment, and seven thousand three hundred and twenty-four dollars and seventy cents to Mrs. McKinlay up to date, leaving the amount due the plaintiff twenty-six thousand one hundred and thirty-five dollars and sixty-one cents.

Exceptions being taken to the accounts as stated by the Commissioner, new accounts were filed, which reduced the amount of plaintiff’s demand to thirty-four thousand eight hundred and forty-five dollars and eighty-four cents; struck out interest on the value of the calves, and thereby reduced the credits in favor of defendants to eight thousand one hundred and forty-three dollars and seventy-five cents, leaving the amount due the plaintiff twenty-six thousand seven hundred and two dollars and nine cents.

Upon the findings of the Court, the report of the Commissioner, and the last accounts filed, final judgment was entered in accordance therewith, and further providing that upon the payment to the plaintiff of the amount so found due him within one hundred and twenty days, he should 'reconvey said ranch to defendants as they held it before; and that in default of such payment the cross-complaint should be dismissed and defendants barred and foreclosed of all equity of redemption in the ranch.

The plaintiff moved for a new trial, which was denied; and he then took an appeal from the judgment and order. In the meanwhile the defendants also took an appeal from the judgment, and urged as objections the points discussed in the opinion. Both appeals were heard together.