dеlivered the opinion of the Court, Temple, J., Crockett, J., and Wallace, J., concurring:
The defendant being indebted to the plaintiff and other persons in the sum of $2,100, applied to the plaintiff for the loan of that sum, and offered as security, a mortgage of the premises in controversy. The plaintiff refused to take a mortgage, because of the expenses attеnding a foreclosure, and the transaction was consummated in this manner: The plaintiff advanсed to the defendant $1,500, which, with the debt due from the defendant to the plaintiff, amounted to $2,100. The dеfendant and wife executed to the plaintiff a deed of the premises, and the plaintiff аnd defendant executed a lease, by which the plaintiff demised the premises to the defendant, for the term of five years, at the annual rent of $378. The lease contained the usual сonvenant for the payment of the rent, and for the surrender of the possession of the premises at the expiration of the term; and it was further covenanted that if the lessee should, during or at the expiration of the term, pay to the lessor the sum of $2,100, and perform the covenants on his part mentioned in the lease, then the lessor would execute and deliver to the lessee a good and sufficient deed of the premises. The note of the defendаnt which the plaintiff then held, was at a subsequent time surrendered. No note or contract in writing was made by the defendant for the payment of the $2,100.
The annual rent was paid by the defendant during the tеrm. Two days after the expiration of the term, the sum of $2,100 not having been paid by the defendant, thе plaintiff gave the defendant notice to quit, and subsequently
I shall assume that these facts were correctly found, and shall оnlynotice one of tbe conclusions of law — that tbe plaintiff is not entitled to recover tbe possession of tbe premises.
In Jackson v. Lodge (36 Cal.. 28), tbe question whether an absolute deed, which is shown by рarol evidence to have been intended as a mortgage, conveys the legal titlе to tbe premises, was discussed at great length, and a majority of tbe Court answered tbe question in tbe negative. I came to tbe opposite conclusion, and my views met tbe full concurrence of Mr. Justice Crockett. I do not propose, at this time, to enter again upon tbe discussion of that question, though the argument might be materially strengthened. Since tbe decision of that case I have seen nothing which tended to shake my confidence in tbe conclusiоn which I then expressed; and I again announce that, in my opinion, an absolute deed doеs convey tbe legal title.
Accepting as true tbe proposition that the deed of tbe defendant and wife conveyed to tbe plaintiff tbe legal title, it necessarily follows, that, uрon tbe expiration of tbe term of tbe lease, tbe plaintiff was entitled to tbe possеssion of tbe lands conveyed, unless tbe defendant has made out a good equitable defеnce.
Tbe answer sets up facts, showing that tbe transaction was a loan and mortgage to secure tbe payment of tbe money and interest. Tbe principal sum bad become due and remained unpaid. An agreement to extend tbe time of payment is alleged, but for tbe wаnt of consideration, it could not be enforced, if it bad been proven. Tbe money ' having bеcome due, it was incumbent on tbe defendant, if be desired to have tbe Court declare that in equity tbe
Judgment reversed and cause remanded, with directions to render judgment for the plaintiff, for the possession of the premises sued for.