De Carrion v. De Aguayo

Judgment was entered in the court below for defendants. Plaintiff made' a motion for a new trial, which was denied. This appeal is from the judgment and order denying the motion.

The complaint is for the recovery of the possession of the land's described therein, and contains the usual allegations in ejectment. The answer, in addition to a denial of the allegations of the complaint, alleges affirmatively that defendants are, and were at all the times therein named, the *717 owners and seised in fee of said lands; that on the fifteenth day of June, 1892, they executed and delivered to one Saturnino Carrion, since deceased, and vdio was the husband and grantor of plaintiff, what purported to be a grant, bargain and sale deed of the premises, which deed was recorded; that said deed, although absolute in form, was intended to be, and was in fact, a mortgage to secure the payment of $1,000 to plaintiff’s grantor, with legal interest thereon. It was admitted that, unless the said deed was in fact made as a mortgage, the plaintiff would be entitled to judgment. This was the only issue in the ease. The court found: “That the said instrument though in the form of a deed absolute, was…

On Motion for Hearing in Bank.

July 29, 1901.

Rehearing denied.

I concur in the denial of a hearing in bank, but I think that the expression in the opinion that “in case of a substantial conflict in the evidence the finding of the court below is conclusive here” should be stricken out. That rule does not apply to a case where an absolute deed is sought to be declared to be something else.

I concur: Beatty, C. J.