
    [No. 2,417.]
    J. W. WILBER v. C. F. SANDERSON.
    Deed Intended as Mobtsage—Sale by Geantee.—Where property is conveyed to another hy deed absolute in form, but under agreement that it shall be only a security hy way of mortgage, and the grantee subsequently sells the property as his own, the grantor may, if he so elects, affirm the sale, and sue for the overplus after the payment of the mortgage debt.
    Appeal from the District Court of the Twelfth Judicial District, City and County of San Francisco.
    This was an action for money had and received. The plaintiff recovered a judgment. The defendant moved for a new trial, which was denied, and he appealed.
    The other facts are stated in the opinion.
    
      E. A. Lawrence and S. W. Sanderson, for Appellant.
    
      Burnell Burnett, for Respondent.
    [No briefs in this case were found on the files of the Court.—Reporter.]
   By the Court,

Wallace, C. J.:

There can be no doubt that a general demurrer to the complaint, had it been interposed, must have been overruled.

It is alleged that the plaintiff was the owner of the lot on Jessie street, San Francisco; that he caused it to be conveyed to the defendant by deed in form absolute; but, by agreement of the parties, only as a security by way of mortgage; that defendant subsequently made sale of the property as his own, and conveyed the title to the purchaser; that the plaintiff might, if he had chosen to do so, have brought an action against Emmal, the purchaser, for the purpose of redeeming the property, and might have succeeded in compelling a reconveyance had he been able to prove that the latter knew that his grantor held the title, not absolutely, but only as security, does not show, or tend to show, that he might not, at his election, and as he has elected to do, affirm the «sale, and sue for the overplus after the payment of the mortgage debt.

After an attentive consideration of the evidence, we are of opinion that the judgment ought not to be disturbed here, and that the appeal is without merit.

Judgment affirmed, with twenty per cent damages.  