Concurring. — The condition of the pleadings and the theory on which this case was tried impel me to *271concur in a reversal of the judgment. Plaintiff in the lower court, who is respondent here, commenced his action and prosecuted his case on the theory that the defendant and appellant had executed a contract for the conveyance of certain real property and that, relying upon the terms of the contract itself, he was entitled to a specific performance thereof. The facts of the case do not entitle him to relief in an action for specific performance.
On this appeal, however, the respondent argues that the contract amounted, in fact, to a mortgage and that the evidence in the case and the findings by the court are at least in substance to that effect. Respondent, who appeared in this court in his own behalf, calls attention of the court to that part of the appellant’s evidence wherein she testified as follows: “When Mr. Machold renewed the contract,-1 gave him something over $300, so the $500 set off one year’s interest, and the balance in cash. I loaned him that much additional.” Jn commenting on this evidence, respondent says: “Now, therefore, if Millick only held title as security for a loan, no title passed from Millick to Farnan, and even if appellant did not loan the money direct to respondent, which she admits she did, appellant could receive only the mortgagee’s right as security.” In other words, respondent claims on this appeal that when he was unable to pay Millick the balance of the purchase price, he began looking around to find some one who would loan enough money to pay off Millick, and that he found the appellant who was not only willing to pay Millick' the one thousand dollars, but was also willing to loan him (the respondent) the further sum of $500, and take title to this real estate as security therefor. He claims that the legal title passed to Mrs. Farnan simply as security for the payment of the sum of money she advanced to Millick and of the loan to respondent, and that she cannot be heard to contend in court now that the transaction was a purchase on her part with a mere agreement to reconvey in ease of payment.
As above stated, the condition of the record on this appeal is not such as to authorize or justify us in a consideration of that branch of the ease. There is some evidence in the rec*272ord which tends to support this theory, and some of the findings of the trial judge are in harmony with that evidence, and with respondent’s present theory of the case. The findings, however, are not sufficient to support a judgment declaring this transaction a mortgage, and, on the other hand, the evidence is not sufficient to support findings and judgment for specific performance. This is not an action to have the transaction declared in legal effect a mortgage. For these reasons, I concur in a reversal of the judgment.
. Sullivan, J., concurs with the concurring opinion.