Locke v. Moulton

Yancliee, C. Action of ejectment to recover possession of a half section of land. The complaint is in the most general form, alleging, in substance, that plaintiff owns, and is entitled to the possession of, the demanded premises, and that the defendants are in possession and wrongfully withhold it from the plaintiff.

In their answer the defendants deny that plaintiff ever owned the land, or that he was entitled to the possession thereof at the time of the commencement of the action; and, as a further answer, allege that on October 2, 1885, the defendant Moulton, who was then the owner and in possession of the land, executed to plaintiff a bargain and sale deed thereof, absolute in form, but which was intended by the parties thereto to operate [51]only as a mortgage to secure payment to plaintiff of a debt of six thousand one hundred and twenty-seven dollars and fifty cents with interest; and that it was understood and expressly agreed by the parties, at the time the deed was executed, that upon payment of the said debt the plaintiff would reconvey the land to Moulton. As a further answer the defendants alleged adverse possession for a period of five years, etc.

The answer closed with the following prayer: “Wherefore, defendants pray that plaintiff take nothing by reason of this action; that it be adjudged that plaintiff is not the owner of, or entitled to the possession of, the real property described in the complaint; that it be decreed that the instrument in writing herein described was and is a mortgage, and that the defendants have judgment for their costs.”

A former judgment in favor of plaintiff in this case was reversed by this court and a new trial granted. (Locke v. Moulton, 96 Cal. 33). After the remittitur was filed in the court below, to wit, on the first Monday in October, 1892, the case was called by the lower court for the purpose of setting a day for the new trial thereof, when the attorneys for defendants demanded a trial by jury, whereupon the court stated “that the defendants could have a jury on the common-law part of the action, but the court itself would try the equity part of the case,” to wit, the issue as to whether the deed was intended to operate merely as a security for a debt. On December 1, 1892, the case was called for trial, when the defendants again demanded a jury trial upon all the issues in the case. The court again refused a jury trial on the issue as to whether the deed was intended to be a mortgage, and proceeded to try that issue alone. The result of such trial was a finding by the court that the deed “was not executed or delivered as a mortgage, and was not a mortgage of any kind, and was not to secure the payment of any money whatever.” And, as a conclusion of law, found “ that said deed was not a mortgage, but that it was a conveyance and grant