Wenzel

The deed being a mortgage, plaintiff was not the owner of the land. (Civ. Code, secs. 24, 29; Smith v. Smith, 80 Cal. 325 .) There was no sale to Schultz by plaintiff, and he could not have a vendor’s lien. (Civ. Code, sec. 3044.) A grantee is not estopped to deny the title of his grantor. (San Francisco v. Lawton, 18 Cal. 476 ; 79 Am. Dec. 187 ; Osterhout v. Shoemaker, 3 Hill, 518 ; Sparrow v. Kingman, 1 N. Y. 253 ; Blight v. Rochester, 7 Wheat. 548 ; Propagation Society v. Pawlet, 4 Pet. 506 ; Watkins v. Holman, 16 Pet. 54 ; Barker v. Salmon, 2 Met. 32 ; Averill v. Wilson, 4 Barb. 180 .) That the deed was a mortgage could be shown under the issue as to the ultimate fact of the ownership of the land. (Grewell v. Waldon, 23 Cal. 165 ; Smith v. Smith, 80 Cal. 323 .)

Action to foreclose a vendor’s lien, and to have a mortgage executed by the plaintiff upon the *252 land claimed to be subject to such vendor’s lien foreclosed.

According to the averments of the amended and supplementary complaint plaintiff was, on the eighth day of December, 1888, the owner of and in the possession of certain land described therein. That plaintiff sold and conveyed the land to Charles F. Schultz. The…