
    Mr. Chief Justice Moore and Mr. Justice McBride concur.
    Mr. Justice Bean concurs in the result.
    
      Motion to dismiss appeal denied September 29, 1914.
    Argued on the merits June 22,
    reversed June 29, 1915.
    VINCENT v. FIRST NAT. BANK. 
    
    (143 Pac. 1100; 149 Pac. 938.)
    Appeal and Error—Record—Time for Filing—Evidence.
    1. Under Laws of 1913, page 619, providing that the trial court or the judge thereof, or the Supreme Court or a justice thereof, may enlarge the time for filing the abstract, but that the order shall be made within the time allowed to file the transcript, an order extending the time for filing the transcript may be entered before the undertaking on appeal has been filed.
    Time—Computation—Days.
    2. Where a notice of appeal was served and filed on June 22d, an undertaking served and filed July 3d was in time; June 23d being excluded in computing the 10 days allowed.
    Time—Computation—Days.
    3. Where the transcript was filed August 19th an abstract filed September 9th was in time.
    Appeal and. Error—Record—Transcript—Sufficiency.
    4. Under Laws of 1913, page 656, providing that when an appeal is perfected the original proceedings and original bill of exceptions shall be sent to the clerk of the Supreme Court, a transcript, including the original bill of exceptions but omitting certain motions, summons and other papers, is sufficient; the respondent being entitled to have the remaining papers brought up if desired.
    ON THE MERITS.'
    Mortgages—Deed Absolute in Form.
    5. A conveyance absolute on its face, but in fact intended to be security for the payment of a debt, did not convey title, but was only a mortgage which it was necessary to foreclose as provided by statute, before the grantor or mortgagor could be divested of his estate. The fact that it was agreed that the grantee should have the power to convey the premises and account for the proceeds did not ehange the character of the transaction.
    [As to effect of lapse of time on right to have deed declared to be a mortgage, see note in Ann. Cas. 1914B, 354.]
    Mortgages—Action for Accounting—Proof.
    6: A complaint alleging that plaintiffs, being indebted to defendant, executed a warranty deed intended to secure the debt, that it was agreed that the grantee might convey the premises and account for the proceeds, and that the grantee negligently sold or exchanged the premises for other property to plaintiff’s damage in a certain sum, showed that the transaction was a mortgage, and that the mortgagee, having no title had attempted to alienate the estate of the mortgagor, and that the title of the mortgagor was in no way disturbed, and hence stated no cause of action.
    From Yamhill: Webster Holmes, Judge.
    In Banc. Statement Per Curiam.
    This is an action by Vinnie A. Vincent and. Mary D. Vincent against the First Nat. Bank of Roseburg. From a judgment in favor of plaintiffs, defendant appeals. Respondent now moves to dismiss the appeal herein. The judgment in this case was entered May 14, 1914. The notice of appeal was served and filed on the 22d day of June. On the 1st day of July an order was made by the judge of tbe court below extending tbe time to file tbe transcript to August 25th. On tbe third day of July tbe undertaking was served and filed. Tbe transcript was filed in this court August 19th and tbe abstract September 9th.
    Motion Denied.
    
      Mr. Walter C. Winslow and Mr. Roswell L. Conner, for the motion.
    
      Messrs. McCain, Vinton & Burdett and Mr. C. R. Chapin, contra.
    
    In Banc.
   Opinion

Per Curiam.

Tbe first ground of tbe motion is based upon the proposition that on tbe 1st day of July, when tbe order was made enlarging tbe time to file tbe transcript, tbe undertaking bad not been filed and tbe appeal bad not been perfected. The statute reads:

“Tbe trial court or tbe judge thereof, or the Supremé Court or a justice thereof, may, upon such terms as may be just, by order enlarge tbe time for filing the same [abstract]; but such- order shall be made within the time allowed to file transcript, and shall not extend it beyond the term of the appellate court next following the appeal”: Laws 1913, p. 619.

The contention made that this order can only be made after the appeal has been perfected and before the time «to file the transcript has expired we think not sound. This construction is far too narrow. The context shows that it was meant that the order should be made before the time had expired to file the transcript, and not to restrict it to the time after the appeal had been perfected. We think .this order was made within the proper time.

The second contention that the undertaking was not filed within the proper time is answered by decisions of this court in a number of cases, the last of which was Pringle Falls Power Co. v. Patterson, 65 Or. 476 (128 Pac. 820). The time within which an act must be done is computed by excluding the first day and including the last; and if we exclude the 23d, the undertaking was served and filed within. 10 days.

The third contention that the abstract was not filed within the time is answered by the same computation.

The last contention that no transcript of the original proceedings has been filed is without merit. Laws of 1913, Chapter 335, provide:

“When an appeal is perfected the original pleadings and original bill of exceptions shall be sent by the clerk, or other proper officer of the trial court, to the clerk of the Supreme Court or appellate court.”

The original bill of exceptions was filed with the transcript, and this is all that can possibly be of any benefit to any of the parties. To bring up all the motions, summons and other papers that are filed in the court below would simply entail a burden upon the court below, as well as upon the clerk of this court, and would serve no useful purpose. The pléadings are required to be copied in the abstract, and are so done in this case; and, if the clerk of the court below has not seen fit to send these original papers up, we cannot see that anybody is injured. If counsel for respondent desires them, he can have them sent here.

Department 1. Statement by Mr. Justice Burnett.

The complaint here alleges, in substance, that the plaintiffs, being indebted to the defendant, made, executed and delivered to it an instrument which was in form a warranty deed conveying to the defendant certain lands in Clarke County, Washington, but that, in fact, the conveyance was intended by both parties to be a security for the liquidation of the indebtedness, which being accomplished, the title should be returned to the plaintiffs. It is also stated that it was “further understood and agreed at said time between the plaintiffs and defendant that said defendant should have the power to convey said premises and account to plaintiffs for the proceeds.” It is charged that afterward the bank carelessly, negligently and without properly investigating the matter sold or traded the premises for property located in Idaho, to the damage of the plaintiffs in the sum of $4,300. A general demurrer to the complaint was overruled. The defendant answered, raising certain issues not necessary to consider at present, and a jury trial resulted in a judgment in favor of the plaintiffs for damages, from which the defendant appeals.

The motion to dismiss the appeal is denied.

Motion Denied.

Argued June 22, reversed June 29, 1915.

On the Merits.

(149 Pac. 938.)

Reversed and Remanded.

For appellant there was a brief over the names of Messrs. McCain, Vinton & Burdett and Mr. C. R. Chapin, with oral arguments by Mr. James McCain and Mr. J. E. Burdett.

For respondents there was a brief with oral arguments by Mr. Roswell L. Conner and Mr. Walter C. Winslow.

Mr. Justice Burnett

delivered the opinion of the court.

The case made on the demurrer to the complaint is controlled by Thompson v. Marshall, 21 Or. 171 (27 Pac. 957), where it is established in an exhaustive opinion by Mr. Chief Justice Strahan that, although absolute on its face, a conveyance which is, in fact, intended to be a mortgage or security for the payment of indebtedness, does not operate to convey title, but is, in very truth, only a mortgage which it is necessary to foreclose in the manner provided by our statute before the grantor or mortgagor can be divested of his estate. In opposition to the demurrer the plaintiffs set much store by the allegation that it was understood and agreed the defendant should have power to convey the premises, and account to the plaintiffs for the proceeds. This allegation does not suffice to differentiate this case from Thompson v. Marshall, 21 Or. 171 (27 Pac. 957). The same element appeared in the transactions there in question. Indeed, it is common practice to include in any mortgage of realty a power to sell the premises.

We have, then, in the instant case, according to the complaint, a situation where a mortgagee has attempted to alienate the estate of the mortgagor, but, having no title; the former effected nothing by such a transaction. Tried by the statement of the plaintiffs in their primary pleading, their title has not been in any wise disturbed. For all that appears on the face of the complaint, they might even yet bring suit to redeem the property or the defendant might sue to foreclose. Where the mortgage is in form an absolute deed, conveyance to an innocent purchaser would militate against the title of the mortgagor; but that element does not appear in this' case. In brief, the plaintiffs rely for recovery upon an act of the defendant which by the showing made in the complaint did not affect their interests in the least. That pleading does not state a cause of action. Hence it is not necessary to consider, the other errors assigned.

The judgment of the Circuit Court is reversed, and the cause remanded for further proceedings.

Reversed and Remanded.

Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Benson concur.  