Penney

The plaintiffs brought this action to have a certain deed, absolute upon its face, declared to be a mortgage, and for a judgment directing the defendant, the grantor named *382 in such deed, to execute to plaintiffs a reconveyance of the property described upon the payment of the debt alleged to have been secured by the deed in question.

The action was tried by the court without a jury, and the court found that the deed referred to in the complaint was not intended as a mortgage, or as security for any debt.

The main contention of appellants upon this appeal is that this finding is not sustained by the evidence. In the late case of Mahoney v. Bostwick, 96 Cal. 53 ; 31 Am. St. Rep. 174 , this court in discussing the nature of the proof required upon the part of the plaintiff in this class of actions, said that the “presumption of law, independent of proof, is that the instrument is what on its face it purports to be—an absolute conveyance; and that this presumption should be allowed to prevail unless the evidence offered to show that the deed was, in fact, intended as a mortgage, is entirely plain and convincing”; and it was further said that, “unless the evidence is such as to…