Action to quiet title, and complaint in the usual form. Defendant W. George Wheaton, answering denies plaintiff's title, and alleges that the deed on which the plaintiff relies, made by himself and daughter, defendant Ada Julia Wheaton, although absolute in form, was executed to the plaintiff by way of mortgage to secure an indebtedness; and, further, said defendant alleges that at the time of making said deed to the plaintiff he had no interest or estate whatever in the premises, as he had prior to that date, to wit, on June 29, 1896, transferred by grant absolute said property to his said daughter. Defendant Ada Julia Wheaton, in her answer, also denies title in the plaintiff, and sets up title in herself to said premises acquired by said conveyance from her father. She also alleges that the deed made by herself and father to the plaintiff was executed by way of mortgage to secure an indebtedness due from her father to the plaintiff.
The court finds on the issues presented by the pleadings that on the nineteenth day of August, 1893, the defendant W. George Wheaton, to secure the indebtedness of four thousand dollars, evidenced by promissory note of that date, and payable one year from date, executed and delivered a mortgage on the premises in question; that thereafter, on the twenty-ninth day of June, 1896, defendant W. George Wheaton, by a grant absolute, conveyed all of said premises to his daughter, Ada Julia Wheaton; that said Ada Julia Wheaton paid no consideration for said conveyance, and the same was made to her as a gift by her father; that on the tenth *Page 402 day of August, 1896, in consideration of the satisfaction of said indebtedness and the satisfaction of said mortgage, defendants W. George Wheaton and Ada Julia Wheaton agreed to, and they did make, execute and deliver to plaintiff a deed absolute of grant, bargain, and sale of all of said described premises; that on the execution and delivery of said deed plaintiff surrendered to defendants Wheaton said note, and on the same day duly satisfied of record said mortgage; that on the said tenth day of August, 1896, at the time of the execution and delivery to him of said deed, plaintiff made and delivered to defendant Ada Julia Wheaton a written offer to sell said premises for the sum of four thousand eight hundred and fifty-three dollars, payable on acceptance of the offer, and if she desired to purchase said property upon said conditions he would keep the offer open until February 5, 1897, but no longer, and if not before said time, or then, accepted, the offer to be considered as withdrawn, and as never having been made; that the said sum of four thousand eight hundred and fifty-three dollars mentioned in the foregoing offer was the sum of principal and interest of the note and mortgage in question, with the taxes for 1896, and expenses of deed, abstract of title, and recording. The court further finds that said deed made and delivered to plaintiff by defendants Wheaton was not made or delivered to plaintiff, nor received by plaintiff, as or for a mortgage, or as security for any indebtedness whatever.
One Edward Gooch, a tenant of defendants Wheaton at the time of bringing the action, was made a defendant, but he neither moved for a new trial nor has he taken an appeal.
The other defendants appeal from the judgment in favor of plaintiff, and from an order denying their motion for a new trial.
In addition to the contention of said appellants that the findings are not supported by the evidence, they claim the court erred in its rulings upon certain objections made during the trial. The first is a ruling sustaining plaintiff's objection to the question asked defendant Wheaton: "I will ask you who was to pay the taxes on these premises for the year 1896." The defendants themselves offered in evidence, without objection, a written memorandum showing the different *Page 403 items, including the taxes for the then current year, making up the sum for which the agreement or option was given. The objection to the question to show by parol what their written memorandum contained was properly sustained.
It is further complained that the court erred in sustaining the objection to the following question asked defendant Ada Julia Wheaton: "Now, were you willing, and did you consider you were deeding this property absolutely to Mr. Garwood?" This question begs the very point in issue. The witnesses had testified fully as to all that occurred prior to and at the time of the transaction and the reasons for executing the deed in question. From this evidence the court was to determine the effect of the conveyance, whether the witness had, in her own mind, been willing or unwilling to execute a conveyance. It is also claimed the court erred in sustaining plaintiff's objection to the question: "Do you know the market value of property in that vicinity?" and "I will ask you what you received for that land, and what would be a reasonable and fair market price for the land in controversy." The questions were not directed to the ascertainment of the market value of the property at the time of the conveyance, and, if the value of the land had been an element of consideration to be inquired into, it must have been at the time of the transaction, and not at a time long subsequent thereto. Besides, the witness to whom the question was addressed testified that he did not know the market value of land in the vicinity of the land in question.
Without reviewing the testimony in detail, it is sufficient to say that the findings are fully supported by the evidence. There is nothing in the record at all showing any understanding or agreement of the parties that the deed should be given or accepted as a mortgage. There is no element of fraud or oppression in the whole transaction between the parties. The case is a much stronger one than Farmer v. Grose, 42 Cal. 169, where it was held that the conveyance was absolute. In the opinion the court laid down this rule: "In cases of this class the well-established test by which to determine whether the transaction is a mortgage or a defeasible sale is the fact whether or not, notwithstanding the conveyance, there is a subsisting, continuing debt from the *Page 404 grantor to the grantee." Page v. Vilhac, 42 Cal. 75, followsFarmer v. Grose, supra, and holds that a conveyance in that case was absolute and not a mortgage. There Vilhac gave Page a contract agreeing to sell back the whole or any part of the property upon payment of a specified sum, or proportional part thereof on or before November 1, 1865, at which time the agreement was to "cease to be in force and become entirely null and void." In Watson v. Edwards, 105 Cal. 70, it was contended that to make such a conveyance from the mortgagor to the mortgagee absolute, the yielding up of the note and the discharge of the debt, without a new consideration from the mortgagee to the mortgagor, was insufficient; to which this court says: "This contention cannot, in our opinion, be successfully maintained. A mortgagor may sell and convey all his right and interest in the mortgaged premises to the mortgagee where the transaction is fair, honest, and without fraud, and where no unconscionable advantage has been taken of his position by the mortgagee. It would be surprising if two men in their senses and with their eyes open could not make such a contract. The doctrine `once a mortgage always a mortgage' does not refer to future contracts."
Here, as found, and as the testimony abundantly shows, the note was surrendered, the mortgage canceled, and the debt extinguished. The owner of the fee, Ada Julia Wheaton, never was indebted to the plaintiff, and the plaintiff had no recourse whatever as against either of the appellants upon the former indebtedness. As to her to whom the agreement to reconvey was made, it was a new and independent transaction entirely.
The judgment and order denying a new trial are affirmed.
Garoutte, J., McFarland, J., Harrison, J., and Henshaw, J., concurred.