Ganceart

Appeal from a judgment in favor of defendant, and from an order denying a motion for a new trial.

The action was brought to have an absolute deed executed by plaintiff to defendant October 4, 1886, conveying a lot of land in the town of Alamo, county of Contra Costa, California, adjudged to be a mortgage, and to permit the plaintiff to redeem, and to require the defendant to execute a deed of conveyance to the plaintiff.

The complaint, in apt language, set out in substance that on the fourth day of October, 1886, defendant loaned him four hundred dollars, plaintiff to pay interest thereon at one (I) per cent per month, and that as security for the payment thereof to defendant, he, the said plaintiff, executed to defendant a deed of bargain and sale, absolute in form, but understood and agreed to be and operate as a mortgage, etc. The complaint failed to show when the four hundred dollars averred to have been loaned fell due, or that it was in fact due and payable. Defendant demurred to the complaint, which demurrer was sustained by the court with leave to plaintiff to amend, and in due time he filed an amendment to his complaint. Defendant answered denying all the allegations of…