
    [No. 5382.
    Decided April 12, 1905.]
    Christopher Deeg, Respondent, v. Benjamin Ettleson, Appellant.
      
    
    Appeal and Error—Review op Findings—Conflicting Evidence —Deed Intended as Mortgage. The finding of the trial court on conflicting evidence, that an absolute deed was intended as a mortgage, will not be disturbed on appeal where it is supported by direct and positive .evidence, and the supreme court is not convinced that the trial court erred.
    Appeal from a judgment of the superior court for Spokane county, Belt, J., entered May 16, 1904, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to reform a deed.
    Affirmed.
    
      
      Merritt & Merritt and Samuel B. Stem, for appellant.
    
      Myers & Warren, for respondent.
    
      
      Reported in 80 Pac. 437.
    
   Per Curiam.

This action was brought for thei purpose of having ai certain instrument in the form of a deed declared to be a mortgage, and also to effect its cancellation of record. The amended complaint alleges that, on the 13th day of October, 1900, the plaintiff borrowed of defendant the-sum of $500, due two years from date, and that, for the purpose of securing the payment thereof, the plaintiff and his wife executed a mortgage to defendant upon the land in question; that thereafter, on the 10th day of September, 1902, the plaintiff, for the purpose of securing said $500 and other advances and loans to be made by defendant to plaintiff, and for no other purpose, executed to defendant an instrument in the form of a deed for said real estate; that said instrument was not intended by either of the parties as an absolute conveyance, but was made solely for the purpose of security, as aforesaid; that thereafter, between the 11th day of September, 1902, and the 21st day of June, 1903, the defendant advanced to and paid for plaintiff various sums, amounting in all to about $1,300, and that all of said advances, together with said debt of $500 and interest thereon, were fully paid to defendant prior to November 1, 1903. The defendant claims that the instrument was intended as an absolute conveyance, and denies the making of the payments alleged by plaintiff. The trial court found that the payments had been fully made, and that the instrument was a mortgage. Judgment was entered authorizing the auditor of Lincoln county to cancel the instrument of record as fully paid and satisfied. The defendant has appealed.

There is no question involved upon this appeal except tbe correctness of tbe court’s findings. Tbe evidence is hopelessly in conflict, but there is direct and positive evidence to sustain tbe findings, and, from our reading of tbe entire testimony, we are by no means convinced that tbe trial court erred.

The judgment is therefore affirmed.  