Cohen

On the eleventh day of November, 1873, Cohen owned one-third and Mitchell two-thirds of the Bonny placer mine. Cohen had become indebted to Mitchell in the sum of five thousand dollars, and on that day, for the expressed consideration of that sum of money, conveyed to him his one-third interest by a deed absolute in form. The deed was intended to be only a mortgage, as is clearly shown by the paper executed by Mitchell on the 24th of January, 1874, wherein he declares that he holds the title to the undivided third of the mine in trust for Cohen, and agrees to reconvey *630 it to him upon payment of his indebtedness of five thousand dollars, with interest thereon from the eleventh day of November, 1873, until paid, at the rate of one per cent per month, the payment to be made upon demand; and, if not so made, that judgment should be obtained for the amount found due, and three per cent counsel fees, with costs of suit for foreclosure, should be includéd in the judgment. Upon this paper Mitchell made an indorsement, some time in the summer of 1875, as follows: “I hereby agree to extend the within document for one year, or till the claim is sold.” Mitchell died on the eighth day of…