Evans

First, Richard B. Lee, the plaintiff, on the 14th day of January, 1857, loaned to the defendant, O. M. Evans, the sum of five thousand dollars—at least the defendant acknowledges to have re *174 ceived this sum of money from him on that day. At the same time defendant executed and delivered to plaintiff a deed, with covenants of general warranty to" a house and lot in the city of Marysville, This deed is absolute upon its face, and conveys the fee without any condition whatever.

■ Second, the defendant admits in his answer, that he borrowed the money of the plaintiff for the period of six months, for the hire of which he was to pay him an interest of three per cent, per month, and this he performed for the space of six months, and then refused to pay any further.

Third, defendant at the time of getting the money and malting the deed, had before then given a lease of the house and lot to other parties ; and on the 21st of April, 1856, he assigned the article of lease to plaintiff, who has since, through Ms agent, collected the rents and otherwise exercised acts of ownership. It is proved that the plaintiff accepted the deed, and that it was duly acknowledged and recorded at Ms…