mortgagees. The grantee may maintain an action for the foreclosure of the grantor's equity of redemption; the grantor may maintain an action to redeem, and to compel a reconveyance upon his payment of the debt secured. If the grantee goes into possession he is in reality a mortgagee in possession, and as such is liable to account for the rents and profits."

It was shown in this case that on the twenty-second day of September, 1884, the plaintiff, Mary Ahern, was the owner of the lot in question, and living thereon with her family, and that on that day she and her husband executed to the German Savings and Loan Society their promissory note for the sum of two thousand dollars, payable one year after date, with interest at the rate of seven-twelfths of one per cent per month, payable monthly in advance; and at the same time, to secure payment of the note, executed to the said society a mortgage upon the said lot. Afterward, on the twentyseventh day of the same month, the plaintiffs executed to the defendant their promissory note for the sum of nineteen hundred dollars, payable two years after date, with interest at the rate of seven-twelfths of one per cent per month, payable monthly; and to secure payment thereof executed to defendant a mortgage upon the said lot. It was provided in this mortgage that it was subject to the mortgage to the German Savings and Loan Society, and "that in case default be made in the payment of the principal or interest of the note and mortgage to the German Savings and Loan Society, then the promissory note above described and secured by these presents shall immediately become due and payable."

Mrs. Ahern and the defendant, whose maiden name was Bridget Wallace, were sisters, and the latter resided with the former from time to time until she was married in 1888.

In August, 1886, several months' interest was due and unpaid on each of said notes, and the plaintiffs had no money, or means to raise money, the same.

to pay

Both mortgagees threatened to foreclose unless payment was made, and the question was what should be done. At some time the plaintiffs placed the property in the hands of a real estate agent for sale, and he reported that he had been offered five thousand dollars for it. The defendant advised the plaintiffs not to sell the property, but to convey it to her, and they concluded to and did withdraw it from the agent. Defendant promised, if plaintiffs conveyed it to her, to lease to them the lower floor of the building for three years at ten dollars per month rent, and that the rent for twenty months should be applied to the payment of an indebtedness of two hundred dollars due from the plaintiffs to other parties, and also that she would assume the payment of the note and mortgage to the German Savings and Loan Society. The negotiations between the parties continued until October 6th, when the deed in controversy was executed. At that time and as a part of the transaction the defendant satisfied her mortgage on the record, and delivered to the plaintiffs the note and mortgage. She also executed to the plaintiffs the lease she had promised to give them, and each of the parties executed to the other a release of all claims and demands, of whatsoever nature, accrued or existing up to that date. The plaintiffs also gave written notice to a tenant on the upper floor of the building that they had conveyed the property to the defendant, and that he would therefore for the future pay rent to her.

Thereafter the plaintiffs occupied the lower floor of the building under their lease, and the rent therefor was paid and applied as it was agreed it should be.

In August, 1889, the defendant paid the note to the German Savings and Loan Society, and the mortgage given to secure the same was satisfied and discharged.

The above is a brief outline of the undisputed facts of the case. As to most of the other facts the evidence was conflicting. The plaintiffs testified that the defendant agreed to take and hold the deed as security for the payment of the debts, secured by mortgages on the

CVII. Cal.-25

property, until such time as they could pay the same. The defendant denied that there was any such agreement or understanding, and said, in effect, that the deed was given and accepted as an absolute conveyance.

Whether the deed can be treated as a mortgage or not must depend upon whether there was a continuing indebtedness from plaintiffs to defendant to be secured by it; for if there was no indebtedness there clearly could be no mortgage.

In view of all the facts and circumstances shown, and particularly in view of the fact that at the time of the execution of the deed the parties thereto expressly released each other from all claims and demands accrued or existing up to that date, we do not see how it can be said that the evidence was "clear, unequivocal, and convincing" that there was an existing debt, and that the deed was intended to secure its payment.

In our opinion the judgment cannot be reversed upon the ground that the findings were not justified by the evidence, and we therefore advise that the judgment and order be affirmed.

SEARLS, C., and VANCLIEF, C., concurred.

For the reasons given in the foregoing opinion the judgment and order are affirmed.

MCFARLAND, J., TEMPLE, J., HENSHAW, J.

[No. 15812. Department Two.-June 1, 1895.]

TOWN OF HAYWARD, RESPONDENT, v. JOSEPH PIMENTAL, JUDGE OF THE RECORDER'S COURT OF THE TOWN OF HAYWARD, APPELLANT.

RECORDER'S COURT-ACTION TO RECOVER LICENSE-ALLEGATION OF ORDINANCE JUDGMENT-QUASHING EXECUTION.-In an action in a recorder's court of a municipal corporation of the sixth class to recover a license tax imposed by a municipal ordinance, the failure of the complaint to set forth the provisions of the ordinance otherwise than by refence to its title and date of passage will not invalidate a judgment for the amount of the license. Such a judgment cannot be collaterally attacked

on a motion to quash an execution issued thereon, and is valid and operative until appealed from or reversed. ID.-EXECUTION ERRONEOUSLY RECALLED-NEW EXECUTION-MANDAMUS.-If the recorder erroneously directs an execution which had been issued under such judgment to be returned unsatisfied, and his order is complied with, he may be compelled by mandamus to issue another execution, his duty to do so being purely ministerial. ID.-HEARING APPLICATION FOR MANDAMUS-JUDGMENT ON PLEADING. -Where the answer to an affidavit for a writ of mandate presents no issues of fact, and raises only issues of law, the court may, under section 1094 of the Code of Civil Procedure, hear and determine the matter on the pleadings. Such a hearing is a sufficient compliance with the requirements of section 1088 of such code, that "the writ cannot be granted by default," and that "the case must be heard by the court whether the adverse party appear or not." ID.-DEMURRER TO ANSWER-RECITALS IN JUDGMENT.-A recital in the order sustaining a demurrer to such an answer that the matter had been previously "submitted to the court for consideration and decision," and a recital in the judgment granting the writ that the "cause came on for hearing on the twenty-first day of May, 1894, to which day the same had been duly and regularly continued, on the demurrer of said relator to the answer of said respondent," sufficiently shows that there was a hearing and a submission, not merely of the demurrer, but of the cause on the pleadings. If the recitals were incorrect their incorrectness should be shown on appeal by a bill of exceptions or otherwise.

APPEAL from a judgment of the Superior Court of Alameda County.

The facts are stated in the opinion.

G. S. Langan, and C. C. Hamilton, for Appellant.

D. M. Conner, for Respondent.

BRITT, C.-The respondent, the town of Hayward, in Alameda county, is a municipal corporation of the sixth class, and the appellant is the judge of the recorder's court of said town. That court is provided for in section 882 of the Municipal Corporation Act of 1883. An ordinance of the town imposed a license tax upon persons engaged in certain classes of business. One Freeman carried on business within the purview of the ordinance and refused to pay the tax. Thereupon an action was commenced by the town of Hayward in said recorder's court against said Freeman for the recovery of the amount of such tax then due, together with cer

tain incidental fees and damages. The complaint in such action was filed August 1, 1893; summons was issued and regularly served. Freeman made default, and on August 12, 1893, after a hearing had and evidence taken upon the allegations of the complaint, judgment was entered by the appellant here, in said recorder's court, in favor of the town and against said Freeman for the amount claimed and costs, making a total of thirty dollars and five cents. A writ of execution was issued for the enforcement of the judgment, but before any levy thereunder the defendant, said Freeman, moved the recorder's court to recall and quash said execution, "on the ground that the complaint in said action did not state facts sufficient to constitute a cause of action, and that the judgment therein entered was null and void." On September 11, 1893, such motion was sustained by the appellant here, and the town marshal, who held the writ, was ordered to return the same "without service and to stay all further proceedings in the matter"; which order he obeyed. On September 22, 1893, the respondent by its attorney demanded of appellant that he issue another execution in that action, but he refused to do so. This proceeding was then instituted in the superior court to obtain a writ of mandate to compel compliance with such demand.

Appellant, in response to the complaint or affidavit on which respondent founded its application for a mandamus, filed an answer wherein he set up the circumstances of said motion to quash the writ of execution, and that he had "fully heard all and singular the evidence and argument offered by the respective parties upon such motion in the said action, and as such recorder, and as such recorder's court," after full consideration, determined said motion, and ordered that the writ of execution be quashed. He made no other defense. The superior court sustained a demurrer to the answer, and at the same time rendered judgment directing that the writ of mandate issue as prayed for.

The sole ground upon which the appellant justifies