ent in the original plan devised by the employers: Boswell v. Laird, 8 Cal. 469, 68 Am. Dec. 345; and if a proprietor undertakes to do that upon his lot which is dangerous in its nature to adjacent proprietors, he must use reasonable care to prevent injury to them, whether he does the work himself or through an independent contractor: Dillon v. Hunt, 105 Mo. 154; 24 Am. St. Rep. 374.

CORPORATIONS — LIABILITY FOR Acts of Agents AND OFFICERS.—Trespass may be committed by a corporation, if, by its managers or authorized agents, it commands the trespass, or sanctions it when committed: Under. wood v. Newport Lyceum, 5 B. Mon. 129; 41 Am. Dec. 260; Hopkins v. Atlantic etc. R. R., 36 N. H. 9; 72 Am. Dec. 287; Brokaw v. New Jersey R. R. etc. Co., 32 N. J. L. 328; 90 Am. Dec. 659; Atlantic etc. R'y Co. v. Dunn, 19 Ohio 8t. 162; 2 Am. Rep. 382.

MAHONEY V. BOSTWIOK.

[96 CALIFORNIA, 58.]

DEED CLAIMED TO BE A MORTGAGE. THE PRESUMPTION of Law 18, that an instrument is what on its face it purports to be; and this presumption, when a conveyance is claimed to have been intended as a mortgage, should be allowed to prevail, unless the evidence to the contrary is plain and convincing; but whether the evidence is of such character and strength as to produce this conviction, is a question for the trial court to determine.

DIED SHOULD NOT BE DECLAREd a Mortgage, UNLESS the evidence leaves in the mind of the trial judge a clear and satisfactory conviction that the instrument, which in form is a conveyance, was by all the parties thereto intended as a mortgage.

MORTGAGEE WHO ENTERS INTO POSSESSION WITHOUT THE CONSENT OF THE MORTGAGOR, and wrongfully ousts him therefrom, is liable to be charged with the rents and profits, the same as any other disseisor, and is not entitled to any accounting to determine how much he may have actually realized from his wrongful occupation, after deducting the necessary expenses of carrying on the farm.

MORTGAGER WRONGFULLY TAKING POSSESSION IS NOT TO BE CREDITED with the value of fencing, ditching, and other improvements placed on the premises while he was holding them adversely to the mortgagor. Nor can the mortgagee recover for such improvements by proof that the mortgagor himself intended to make and would have made them, had he not been dispossessed of his land.

MORTGAGEE CANNOT REQUIRE, AS A CONDITION OF REDEMPTION, the pay. ment of any other debt not a lien upon the land.

MORTGAGE - REDEMPTION. — THE PAYMENT OF A DEET NOT SECURED by a mortgage cannot be exacted as a condition of redemption therefrom. The maxim that a complainant seeking equity should be compelled to do equity applies only when the relief sought by him and the right demanded by the defendant belong to or grow out of the same transBotion.

W. L. Dudley, Baldwin and Campbell, and L. J. Maddux, for the appellant.

Stonesifer and Minor, and W. E. Turner, for the respondent.

DE HAVEN, J. The complaint in this action alleges, among other matters, that in August, 1884, plaintiff was the owner of the land therein described, and at that date he executed to one William Inglis a deed thereof, as security for money then advanced by said Inglis to pay off a debt due from plaintiff to the Stockton Savings and Loan Society, and which indebtedness was a lien on said land; that upon February 5, 1885, the defendant, by agreement with plaintiff, paid to said Inglis the amount then due from plaintiff to Inglis, and plaintiff, in consideration thereof, caused said Inglis to convey to defendant the land which had theretofore been conveyed by plaintiff to Inglis, and that at the time it was agreed between plaintiff and defendant "that said deed, though an absolute conveyance on its face, . . . . should be treated and considered as a mortgage of said lands," to secure the payment to defendant of the amount so paid by him to Inglis, at the request of plaintiff.

The complaint further alleges, that thereafter the defendant repudiated the agreement under which he received the deed from Inglis, and claimed that the same was an absolute conveyance; and on October 6, 1885, he ousted plaintiff from the possession of said land, and has ever since withheld the possession thereof from plaintiff, and has kept and enjoyed all the rents and profits thereof.

The prayer of the complaint is, that the deed from Inglis to defendant be declared a mortgage, to secure the repayment of the money loaned by defendant to plaintiff, and the interest thereon; and that the court ascertain the value of the rents and profits of the land while in possession of defendant, and credit the amount thereof upon the indebtedness which the deed was intended to secure, and that upon payment of the balance due defendant, he be required to convey such land to plaintiff.

The answer of defendant contained a specific denial of all these allegations, and also pleaded a former judgment in an action between the same parties as a bar.

The court below found all of the allegations of the complaint to be true, and also that plaintiff's cause of action was not barred by the former judgment referred to in the answer,

and thereupon gave judgment in accordance with the prayer of the complaint, in which judgment the defendant was charged with the rental value of the land during the time he was in possession of the same, and was not allowed the value of certain improvements which he had placed thereon, or the amount of certain money advanced by him to plaintiff for the purpose of carrying on and improving the farm.

The defendant appeals from the judgment, and an order denying his motion for a new trial.

There were many exceptions taken during the trial and preserved by the defendant in the bill of exceptions, which forms a part of the record before us, but only the grounds upon which he mainly relies for a reversal of the judgment and order require discussion here.

1. The appellant insists with great earnestness that the finding of the superior court, that the deed executed to defendant by Inglis was in fact intended as a mortgage, is not sustained by evidence. But in our view, the evidence upon this material issue was conflicting in a substantial degree, and such being the case, under the rule which has often been declared by us, the finding of the trial court as to the fact must be allowed to stand. We fully agree with appellant that in actions of this character the presumption of law, independent of proof, is, that the instrument is what on its face it purports to be,—an absolute conveyance; and that this presumption should be allowed to prevail, unless the evidence offered to show that the deed was in fact intended as a mortgage is entirely plain and convincing: Henley v. Hotaling, 41 Cal. 22; Cadman v. Peter, 118 U. S. 74; Coyle v. Davis, 116 U. S. 108; Whitsett v. Kershow, 4 Col. 419; 3 Pomeroy's Eq. Jur., sec. 1196. But whether the evidence is of such character and strength as to produce this conviction, is a question for the trial court to determine: Brison v. Brison, 90 Cal. 323. That court ought always to be governed, in weighing the evidence and reaching its conclusion as to the facts, by this rule, which requires the plaintiff, in an action like this, to present a case free from doubt; and unless the evidence is such as to leave in the mind of the trial judge a clear and satisfactory conviction that the instrument, which in form is a deed, was intended by all the parties thereto as a mortgage, the finding should be against the plaintiff. But we cannot say from the record which is before us that the superior court disregarded this rule in making its findings. The finding that

AM ST. REP., VOL. XXXI - 12

the deed was a mortgage does not rest upon the uncorroborated testimony of the plaintiff himself.

2. It is claimed by appellant that the court erred in admitting evidence as to the rental value of the land, and in charging him with such value. In support of this contention, it is argued by appellants that he should only have been charged with the actual or net profits which he derived from the use and occupation of the land. It is unnecessary, in passing upon the question thus presented, to determine what would be the basis upon which the account should be taken, in the absence of an express agreement as to the method, in the case of a mortgagee in possession with the consent of the mortgagor, and occupying himself, and not by a tenant. In this case the appellant's mortgage gave him no right to the possession of the mortgaged premises, and he did not take possession with the consent of the plaintiff. Upon this point the court finds that appellant wrongfully entered upon the premises and ousted the plaintiff from the possession thereof, and in such a case it is very clear to us that the appellant is liable to be charged for rents and profits, precisely the same as any other disseisor would be, and he is not entitled to any accounting to determine how much he may have actually realized from this wrongful occupation, after deducting the necessary expenses of carrying on the farm.

3. The court did not err in refusing to credit defendant with the value of the checks, ditching, and fencing placed by him on the premises while he was wrongfully in possession, and holding adversely to plaintiff. The possession of defendant and all that he did upon the land were acts hostile to the title of plaintiff, and plaintiff is not required, in this action, upon any principle of law or equity, to account to defendant for the value of the improvements thus made by him. It is claimed, however, that the fences were built with the knowl edge and consent of plaintiff. It does appear from the evidence that plaintiff intended to do this fencing, and that defendant, before plaintiff was ousted from possession, had delivered upon the land a part of the lumber which was afterwards used in the construction of the fence. If it should be assumed that this lumber was furnished by the defendant at the request of plaintiff, and that plaintiff had accepted the same and intended to build this fence with it, still this would not be sufficient to prove the fact contended for, that defendant, after he took possession, constructed this fence for plain

tiff, and with his consent. The fence was constructed by defendant for himself, and in the assertion by him of a right to exercise, adversely to plaintiff, dominion over the land upon which it was erected, and plaintiff cannot be made to pay for it, although it may appear that he would himself have built it if he had not been ousted from possession. If defendant has any right to recover from plaintiff the value of the lumber which was delivered on the land by defendant, while plaintiff was in possession, such right cannot be asserted here, as it was not furnished upon any agreement that the price thereof should constitute a lien upon the land, and the payment thereof to be deemed as secured by the mortgage deed held by the defendant.

4. The court below found that after defendant received from Inglis the deed already referred to, plaintiff executed to defendant a mortgage upon the crops to be raised upon the land during the year 1885, "as a further security to defendant for the payment to him, defendant, of such sum or sums as the defendant might thereafter advance to plaintiff, to farm or improve said premises, and as additional security for the payment by plaintiff of the amount paid by the defendant to Inglis" for plaintiff; and the court further found that defendant did advance to plaintiff "about the sum of eleven hundred dollars, for the purpose of farming and permanently improving said premises," and that plaintiff delivered to defendant all the grain raised on the ranch, for the purpose of repaying the same, and the interest on the other loan made by plaintiff to defendant.

The court does not find that the eleven hundred dollars referred to was repaid defendant, or that the grain delivered to him was sufficient for that purpose, and the appellant insists that he is entitled to a credit for the amount of this debt, whatever it may be, in his account with plaintiff in this action, and that the court erred in not ascertaining the amount, and providing in its judgment that the same should be paid before defendant is required to reconvey to plaintiff. We do not think the court committed any error in this respect. This indebtedness was not, by agreement of the parties, made a lien upon the land, but, on the contrary, the money seems to have been advanced by defendant upon an independent security, that is, upon a mortgage upon the growing crops. The general rule is, that the mortgagee cannot require, as a condi.