charged him 2 per cent. per month, and bought up claims in notes and judgments against him. It is not according to the ordinary course of things that a man would deal in that way with reference to property of which he believed himself to be the owner.

Moreover, on the 6th of October, 1876, before the expiration of the year mentioned in the agreement for the purchase of the lands, Montgomery made out and presented to Spect an account or memorandum of the principal and interest due upon the $7,000, and of the advances in money which he had continued to make for the latter from the date of the deed. The whole amounted to $8,485.90. Upon this amount Spect was credited with $2,209.18, which he had paid on the transaction from time to time during the year, leaving a balance due to Montgomery of $6,276.12. "This amount," says Montgomery, was the balance that was between him and me at that time." For this balance Montgomery gave Spect another agreement as follows: "To allow Spect to purchase all the interest which I now own in the real estate which is described in a deed from said Spect to me, dated October 11, 1875, at any time between this date and the 6th day of January, 1877, by his paying to me the sum of $6,276.72 gold coin, together with interest on that amount from this date until paid, at the rate of 1 per cent. per month; and on his paying said sum to me, together with interest as above mentioned, and all sums which I may hereafter pay out on account of said real estate, with interest on such payments at the rate of 2 per cent. per month, I hereby agree to make him a good and sufficient quit-claim deed to said real estate. Should said Spect neglect or fail to purchase said real estate within the time specified, this agreement shall be void, and in no case shall be construed into a mortgage. October 6, 1876."

The same course of dealings took place between the parties from that date until January 6, 1877, when another settlement was had, and a balance struck of $6,950; and Montgomery extended the time for paying it to another year upon the usual terms, by giving a new agreement in writing in substantially the same terms, except that instead of interest on the amount at the customary rates it was provided that Spect should pay $1,042 for rent of the lands in monthly installments of $86.88. But this "rent" is the exact equivalent of the monthly rate of interest at which Montgomery loaned the money; and, as was said in Sears vs. Dixon, 33 Čal. 326, that itself is a strong circumstance to show the intention of the parties. This "rent" Spect paid regularly every month until January, 1878.

It may be that some of these facts are consistent with a conditional sale of the property; but it seems highly improbable that a business man would have dealt as he (Montgomery) did with the property, which he knew was his own, and which he had contracted to sell to another. Considering all the circumstances of the transaction, and the conduct and dealings of the parties in connection with it, we think it is clear that both parties understood that the $7,000 was a subsisting debt, and that the deed, although absolute in form, was intended as security for its payment and of any other sums which Montgomery might thereafter advance to or for Spect, according to their agreement. In a word, that the real transaction between them was one of mortgage and not of sale.

There is nothing in the objection that Spect did not tender the amount of his alleged indebtedness, nor do anything else which excused him from making a tender, if the deed were a mortgage. There is no defense, and consequently no proof of a tender. But it is averred in the answer that about the 1st of June, 1878, Spect applied to the plaintiff for an account or memorandum of the balance claimed to be due on the indebtedness, including any advances which may have been made since the last settlement, and offered to pay when a deed was prepared under the conditions of the defeasance; but Montgomery refused to render any account or make any statement, claiming that the deed was absolute and not a mortgage. This application was made not for the purpose of a tender, but for the purpose of redemption. It was an offer to redeem, and, according to the prayer of his answer, the defendant seeks to redeem. (Hughes vs. Davis 40 Cal. 121; Pico vs. Gallard, 52 Id. 206.)

An equity of redemption is inseparably connected with a mortgage. The right to foreclose and the right to redeem are co-existent; and until the remedy to foreclose may be barred, the right to redeem may be exercised. As the deed in controversy was a mortgage, the mortgagor has a right to redeem his property from it upon payment of the indebtedness which it was intended to secure. This right was properly guaranteed by the Court below for the protection of the plaintiff; for the Court, according to the principles of equity, required the defendant to pay the indebtedness found due to the plaintiff within a certain time prescribed by the judgment. We see no error in the findings or judgment.

Judgment and order overruling motion for a new trial affirmed.

We concur: McKinstry, J., Ross, J.

DEPARTMENT No. 2.

[Filed July 22, 1880.]
No. 6569.

PIO PICO, APPELLANT,

VS.

LUZARO MARTINEZ, RESPONDENT.

CLAIM AND DELIVERY. The value recovered in an action of claim and delivery must be restricted to the value of defendant's special or limited property in the thing claimed.

Appeal from the District Court of the Seventeenth Judicial District, Los Angeles County.

Glassell, Chapman & Smiths, for appellant.
Thom & Ross, for respondent.

SHARPSTEIN, J., delivered the opinion of the Court:

This is an appeal from a judgment in an action of claim and delivery, and the transcript contains nothing beyond a judgment roll. It appears by the findings that the plaintiff let to the defendant certain flocks of sheep and goats for the term of three years from the 6th day of April, 1878, upon certain terms and conditions, with which defendant fully complied. On the 6th day of May, 1878, the plaintiff commenced this action for the recovery of said sheep and goats, or for their value. The Court found that said sheep and goats were of the value of $1.50 per head, and that the defendant was entitled to judgment for the possession of them, or in case a delivery could not be had for the value of them, and rendered judgment accordingly. The only question that arises upon these findings is whether the defendant, who had only a special or limited interest in the property, could recover of the plaintiff, who was the general owner, more than the value of such special or limited interest. The pleadings and findings show that the defendant had only a limited or special property in the sheep and goats replevined, and that the general property in them was in the plaintiff.

In New York and Wisconsin, whose Codes are substantially the same as ours, as to the character of the judgment to be rendered in a case like this, it has been held that the true value to be assessed and recovered by the defendant is the value of his special or limited property in the goods replevined. (Searner vs. Luce, 23 Barbour, 240; Booth vs. Ableman, 20 Wis. 21.) There is no finding as to the value of the defendant's special or limited property in the sheep and

goats; and in the absence of any statement on motion for a new trial, or bill of exceptions, we are not advised whether there was any evidence of its value before the Court. We are satisfied, however, that the value recovered should have been the value of defendant's special or limited property only in the sheep and goats. We discover no other error in the

record.

Judgment reversed, and cause remanded for a new trial. I concur: Myrick, J.

OPINION CONCURRING IN THE JUDGMENT OF REVERSAL.

In concur in the judgment in this case, but not on the grounds stated in the opinion of Justice Sharpstein. I am of opinion that if the defendant was entitled to the return of the property, the judgment as entered was proper. Under such circumstances he had a right to the return of the property (for he was then entitled to the possession of it when the action was commenced), and the value was a substitute for the property. Pico could have evaded the payment of the money by returning the property. If Martinez had collected the money under the judgment, he would have held it as he would have held the property if returned to him-liable to account, when the three years (period mentioned in the contract) expired.

The judgment should be reversed because the findings are not sustained by the evidence. The evidence shows satisfactorily that the defendant failed to comply with his contract. This contract was a continuing one from the time the defendant first received the sheep in August and October, 1877. The contract previously made was only reduced to writing on April 6, 1878, with some modification which does not affect this decision. The defendant, in effect, acknowledges the receipt of 1989 sheep by the contract as reduced to writing on the 6th of April. The contract distinctly refers to 1989 sheep, and makes no reference to 1250, as found by the Court. (See second finding.)

It is stipulated that under no pretext shall the defendant dispose of any head of sheep without the consent of plaintiff. It is established by uncontroverted evidence that the defendant did sell some of the sheep without the consent of the plaintiff, of which he never gave any account to him. Upon the evidence, in my opinion, judgment should have passed for plaintiff.

The article of the contract styled "additional article " allows plaintiff to sell his part of the sheep, or interest, as an

entirety, but not any particular sheep or any number of head of sheep. That this is the meaning is evident from the further provision of such article, that defendant may be allowed to take the part or interest, as an entirety, which belongs to him. He is not allowed to take less than his entire part and dispose of them. This additional article thus does not militate with the views taken in the first portion of this opinion. For the reasons above given, in my opinion, the judgment should be reversed, and the cause remanded for a new trial. THORNTON, J.

DEPARTMENT No. 1.

[Filed July 28, 1880.]

No. 1526.

COLUSA COUNTY, APPELLANT,

VS.

J. B. DE JARNATT, RESPONDENT.

BOARD OF SUPERVISORS. Supervisors in allowing a claim act as a quasi judicial body, and their allowance is a conclusive adjudication.

Appeal from the District Court of the Tenth Judicial District, Colusa County.

Jackson & Hatch, for appellant.

A. L. Hart, for respondent.

By the Court:

The action was brought to restrain defendant, as County Auditor of Colusa County, from issuing a warrant in favor of W. G. Dyas, upon a claim in his favor, which had been allowed against the county for legal services rendered by him, in behalf of the county, in an action to which it was a party. No contest was made against the claim itself. When the Board of Supervisors of the county allowed it, they acted as a quasi judicial body; and their allowance and settlement was an adjudication of the claim, which is conclusive. (Sub. 12, Sec. 4066, P. C.)

There is nothing in the complaint to authorize the interposition of a Court of equity, and we are of opinion that the Court below properly sustained the demurrer to the complaint.

Judgment affirmed.