Fletcher

This action was brought to recover the possession of real estate under section 380 of the Code of Civil Procedure. Two defenses are pleaded. The first simply denies plaintiff’s title and right of possession. In the second, it is shown that plaintiff claims title under and from defendant, and it is averred that the deed from defendant, under which plaintiff claims, was intended and received as security for a loan, and is therefore a mortgage. Defendant alleges that on the first day of August, 1890, he was indebted to plaintiff in divers sums upon certain notes, secured by mort *800 gage upon the premises described in the complaint. That the amount of the indebtedness was $21,000. The mortgaged premises were then worth $35,000. That defendant desired to sell, and 'from the proceeds to pay plaintiff’s demand. That he might be able to give a clear title, it was agreed between himself and plaintiff that the mortgages should be nominally satisfied of record, and, in lieu of them, defendant should execute to plaintiff an absolute deed, and plaintiff would then reconvey to defendant by a deed, which should be placed in escrow, to be delivered to defendant upon payment of $21,000 to…