Cunningham v. Hawkins.

By the Court, Cobbey, J. The complaint in this case is in equity, to redeem certain property in Sierra County from the lien of a mortgage executed on the 13th day of May, 1856, by one James H. Bartlett, to the firm of Raskt & Co., of which the defendant was a member, to secure the payment of a debt then due said firm from said Bartlett, and also for an account of the issues and profits of the premises received by the defendant during the time he had the possession of the premises, which was from the date of the mortgage.

The instrument denominated a mortgage purports to be a conveyance from Bartlett to Raskt & Co. of one fourth of certain mining ground described therein. Eothing appears upon the face of this instrument to indicate its character as a mortgage, except that the consideration expressed is a certain sum [407]of money, “with interest from date till paid.” But the plaintiff alleges in his complaint that it was intended and understood by the parties thereto as a mortgage to secure the payment of the sum mentioned in it as the consideration, with interest, and that the mortgagees entered into the possession of the property under the mortgage to hold the same in trust for the mortgagor.

It is alleged by the complaint that at the time of commencing the suit, and for some time before then, the defendant claimed to be the owner and holder of the mortgage and the debt thereby secured, and during all that time had possession of the premises by virtue of the mortgage; and that on the 1st day of August, 1861, Bartlett conveyed all his right, title, and interest in said property to the plaintiff, who afterward, in the same month, exhibited his deed of conveyance to the defendant, and offered, for the purpose of redeeming the property from the lien of the mortgage, to pay the amount due thereon—but that defendant refused to accept payment, and that the same offer had since then been often repeated, and had been met by a like refusal by the defendant. That at the commencement of the action the defendant was in possession of and holding the premises adversely to the plaintiff, and was taking gold therefrom. The complaint concludes with a prayer for an accounting and redemption of the premises and for general relief.

The defendant, by his answer, alleges that he had been in the possession of the premises ever since the date of said instrument, as the owner thereof, and that for more than five years he had been working and improving said mining ground, and had expended in such work and improvements, during that túne, the sum of seven thousand dollars, and that he had never as yet received anything whatever of value from said premises. The material allegations of the complaint, except the possession and adverse holding of the premises by the defendant, are denied by the answer. And, as an affirmative defense, the defendant pleads that neither the plaintiff nor his grantor was seized or possessed of the premises within five years next