JOHN C. GAY v. ROBERT HAMILTON, 33 Cal. 686

By the Court, Sandebson, J.: It may well be doubted if the testimony of Judge Sawyer was needed for the purpose of explaining the true character of the transaction; but be that as it may, it is well settled in this State that what appears upon the face of the papers to have been an absolute sale and conveyance may be shown by parol evidence to have been intended as a mortgage. (Pierce v. Robinson, 13 Cal. 116; Johnson v. Sherman, 15 Cal. 291; Cunningham v. Hawkins, 27 Cal. 603; Hopper v. Jones, 29 Cal. 19.) This case is not distinguishable from those cited.

It was competent, if necessary, to prove by parol that the deed and agreement were parts of the same transaction, and that the transaction, as a whole, amounted to and was intended to be a mortgage. The money having been received in a fiduciary capacity by the defendant, it was not error to give the plaintiff' a judgment payable in coin. Judgment and order affirmed.