[Sac. No. 4. In Bank.-August 19, 1895.]

J. D. HYDE, APPELLANT, v W. V. BUCKNER, SHERIFF, ET AL., RESPONDENTS.

DEED MORTGAGE-EVIDENCE-SUBSEQUENT DECLARATIONS OF GRANTOR. In an action to restrain the sale under execution against the grantor of lands conveyed by him, upon the alleged ground that the deed was intended as a mortgage, it is error to admit evidence of statements made by the grantor long after the execution of the deed, impeaching the title conveyed thereby, by showing that it was given as security for a loan.

ID.-TESTIMONY OF GRANTOR-ADVERSE WITNESS-EXPLANATORY EVIDENCE-CONTRARY DECLARATIONS.-Where the grantor had been called as a witness for the sheriff and execution creditor to prove that the deed was intended as a mortgage, and had testified that the transaction was a sale, and that the relation of debtor and creditor did not continue between himself and the grantee after the execution of the deed, contrary declarations of the grantor could only be shown by the defendants to explain why they called a witness adverse to them, and not then, unless they were surprised by his testimony; and beyond this the evidence of contrary declarations subsequent to the execu tion of the deed is entitled to no weight, and could have no force in making an affirmative case for the defendants.

ID. REASON ASSIGNED FOR RULING-PRESUMPTION OF PREJUDICE.Where the court, in admitting the evidence of the subsequent declarations of the grantor, gave as a reason for the ruling that the evidence was competent for the purpose of ascertaining what the intention of the parties was, it cannot be presumed that the evidence had no weight in the determination of the principal issue as to whether the deed was intended as a mortgage, and the judgment must be reversed for error in the ruling.

APPEAL from a judgment of the Superior Court of Kings County and from an order denying a new trial. JUSTIN JACOBS, Judge.

The facts are stated in the opinion of the court.

E. O. Larkins, W. B. Wallace, and U. T. Clotfelter, for Appellant.

The debt being extinguished, the deed was not a mortgage. (Farmer v. Grose, 42 Cal. 171; Page v. Vilhac, 42 Cal. 83; Morris v. Angle, 42 Cal. 243; Ford v. Irwin, 18 Cal. 117.) There was not sufficient evidence to overcome the presumption that the deed was an absolute

conveyance, and the findings should have been against the party contending it to be a mortgage. (Penney v. Simmons, 99 Cal. 380; Etheridge v. Wisner, 86 Mich. 166; Jones on Mortgages, sec. 335; Ganceart v. Henry, 98 Cal. 281, et seq.; Hopper v. Jones, 29 Cal. 18, 19; Becker v. Howard, 75 Wis. 415; Henley v. Hotaling, 41 Cal. 22; Hinckley v. Wheelwright, 8 Am. Law Reg. 590.) Admissions made by the grantor of a deed not in the presence of the grantee cannot bind the grantee. (Rice on Evidence, 467; Nicholson v. Tarpey, 70 Cal. 610, 611; Spanagel v. Dellinger, 38 Cal. 282; Briswalter v. Palomares, 66 Cal. 259; Ross v. Wellman, 102 Cal. 1.) There is no substantial conflict as to the intention of the parties to make a sale, and the appellate court can review the evidence. (National Gold Bank v. McDonald, 51 Cal. 71; 21 Am. Rep. 697; Branson v. Caruthers, 49 Cal. 381, et seq.; Null v. Fries, 110 Pa. St. 521; Guerrero v. Ballerino, 48 Cal. 121; Kahn v. Weill, 42 Fed. Rep. 704 (Cal.); Hayne on New Trial and Appeal, 860.)

Horace L. Smith, and Bradley & Farnsworth, for Respondent.

The declarations of the vendor while in the possession of the property are admissible in evidence. (Cahoon v. Marshall, 25 Cal. 197, 202; Bollo v. Navarro, 33 Cal. 459.) The question as to whether the deed was a mortgage is a question of fact as to the intent of the parties. (Hickox v. Lowe, 10 Cal. 210; Jackson v. Lodge, 36 Cal. 39; People v. Irwin, 14 Cal. 435; Sears v. Dixon, 33 Cal. 332; Montgomery v. Spect, 55 Cal. 353; Husheon v. Husheon, 71 Cal. 407; Malone v. Roy, 94 Cal. 346; Penney v. Simmons, 99 Cal. 382; Mahoney v. Bostwick, 96 Cal. 58; 31 Am. St. Rep. 175.)

TEMPLE, J.-This action was brought to restrain the šale, under execution against the property of Peter Van Valer, of certain lands conveyed by Van Valer to plaintiff in October, 1884. The question is whether that deed was intended to secure an indebtedness, and was, there

fore, a mortgage. That it was given as security is affirmed by the judgment creditor and denied by the plaintiff.

Defendant recovered judgment, and this appeal was taken by plaintiff from the judgment and from a refusal of a new trial.

The main contention here is that the evidence does not sustain the the finding of the court upon court upon the issue above stated. After a careful consideration of the evidence, as shown in the record, I do not think the conclusion reached upon that issue can be disturbed here. The evidence is voluminous, and discussion of it would not be useful.

I think, however, the court erred in permitting defendants to prove by the witness Mannheim statements made by Van Valer nine years after the execution of the deed, impeaching the title conveyed thereby to plaintiff, by showing that it was given as security for a loan. Van Valer had been called by defendants, and as their witness had testified, in substance, that the transaction was a sale, and that the relation of debtor and creditor did not continue between himself and Hyde after the execution of the deed. And further, that there was no understanding, express or otherwise, that Van Valer could repurchase for at least three months after the execution of the deed. Defendants then called Mannheim, and asked him to tell what Van Valer had said to him about the transaction in August, 1893. This was objected to as incompetent.

The objection was overruled, the court saying: "I think the evidence is competent for the purpose of ascertaining what the intention of the parties was."

The witness then proceeded to testify that Van Valer stated that he had conveyed the land to Hyde simply as security for a loan.

This evidence was clearly incompetent to disprove or impeach the title which Hyde claimed to have acquired from Van Valer. It was admissible only to show why the defendants had called a witness who was adverse to

them, and not then, unless they were surprised by his testimony. Beyond this it was entitled to no weight whatever. It could have no force in making an affirmative case for the defendants. (Hall v. Bark Emily Banning, 33 Cal. 522; Estate of Kennedy, 104 Cal. 429.)

In view of the reason given by the judge for the ruling, we cannot presume that the evidence had no weight in the determination of the principal issue.

The judgment and order are therefore reversed and a new trial ordered.

MCFARLAND, J., HENSHAW, J., HARRISON, J., and VAN FLEET, J., concurred.

[No. 19541. Department One.-August 21, 1895.]

WILLIAM FRISBIE LEWIS, APPELLANT, V. C. S.

CHAMBERLAIN ET AL.,

MORSE ET AL., RESPONDENTS.

DEFENDANTS. E. W.

- PROPERTY

PRACTICE EXECUTION - SUPPLEMENTARY PROCEEDINGS CLAIMED BY THIRD PERSON.-Under the provisions of the Code of Civil Procedure relating to proceedings supplementary to the execution, the court has no jurisdiction to order the grantee of the judgment debtor, who claims title to the property conveyed, to surrender it or to subject it to the satisfaction of the judgment.

APPEAL from an order of the Superior Court of San Diego County dismissing proceedings supplementary to execution. E. S. TORRANCE, Judge.

Works & Works, for Appellant.

M. A. Luce, and Conklin & Hughes, for Respondents.

HAYNES, C.-Appeal from an order dismissing proceedings supplementary to execution.

Lewis obtained judgment in the superior court of San Diego county against E. W. Morse and N. H. Conklin for a large sum of money, upon which execution was issued and returned nulla bona. He afterward filed in said

court an affidavit, entitled in said cause, alleging the foregoing facts, and further alleging, on information and belief, that defendant Conklin, for the purpose of avoiding payment of said judgment, conveyed 8 large amount of property owned by him to Myra I. Conklin, his wife, and to Ralph L. Conklin, his son, who hold said property in their own names, and are thereby aiding and assisting him to shield it from sale to satisfy plaintiff's said judgment. Like allegations were made of conveyances by defendant Morse to his wife, Mary C. Morse, and that she had conveyed part thereof to one Daniel Schuyler; and upon this affidavit he asked that an order be issued requiring the said judgment debtors and Mary C. Morse, Myra I. Conklin, Ralph L. Conklin, and Daniel Schuyler "to appear and be examined as to the property of said Morse and Conklin, and for such other relief as is provided by law."

Mrs. Conklin filed a written and verified answer to plaintiff's affidavit, specifically denying that she held any property belonging to her husband in her name or possession or control, and alleged "that she in good faith claims and owns in her own right all property now in her name or possession or under her control, or that was in her possession or name or control when any of the papers in this cause were served upon her." She further denied that her husband had conveyed to her any property for the purpose charged in plaintiff's affidavit, and alleged that she then was, and since 1867 had been, the wife of said N. H. Conklin, and prayed that she be no further examined therein, and that she be discharged with her costs. Mrs. Morse filed a similar verified answer.

Upon the hearing Mrs. Conklin was called by the plaintiff, and after testifying to her residence, that she was the wife of N. H. Conklin, and after giving the date and place of her marriage, was asked the following question: "What property, if any, did you have at that time?"

Whereupon her counsel interposed the following objec

tion: