Hunt

Appeal by defendant, Swyney, from a judgment in favor of the interyener, Honora Sharp, and from an order denying his motion for a new trial. An action.was commenced October 17, 1887, by plaintiff, as the executor of the will of George F. Sharp, deceased, against the defendant Swyney et al., to compel said Swyney to convey to plaintiff a certain lot in the city of San Francisco, and to recover the value of the use thereof, alleging that said Swyney held the title in trust for the estate of his testator. Honora Sharp, the widow of said George F. Sharp, filed her complaint in intervention August 17, 1888, alleging the same facts, except that Swyney held the property in trust for her, and that she, and not the estate, was the owner, and entitled to a conveyance and to recover the rents and profits. On December 21, 1880, Alfred Rising and wife executed to George F. Sharp *110 their note for $3,500 for money loaned, and a mortgage upon the lot in question to secure the same. On December 10, 1881, Sharp assigned the note and mortgage to defendant, Swyney, who foreclosed the mortgage, and upon a sale under the decree, in July, 1882, bid the amount of the judgment, and became the purchaser…