Ross

This is an action to redeem a lot of land in the town of Modesto. A deed, absolute in form and purporting to be in consideration of two hundred and fifty dollars was executed and delivered by plaintiff to the defendant. The latter at the same time delivered to the former a bond, by which he bound himself to convey to the former, at any time within two years, the same property upon the payment to him of two hundred and fifty dollars. Plaintiff failed within the two years to tender the sum mentioned in the bond, but subsequently did make such tender, and demanded a deed from defendant, which was refused. The question for determination in the court below was whether the transactions, taken together, constituted a mortgage. It was held that they did not. The finding is that the deed was not given as security, but was executed and delivered by plaintiff to defendant in pursuance of a sale of the property in question. There is testimony in support of the facts as found by the court, and the conclusions of law and judgment are in consonance with the facts. At the trial, defendant was permitted to introduce in evidence, against the objection of plaintiff, his book of account for the…