Ferguson v. Miller

4 Cal. 98

Opinion

Mr. Justice Heydeneeldt

delivered the opinion of the Court.

Mr. Ch, J. Murray concurred.

The error in this case is too palpable for discussion. The paper executed by Kelly to Parks is upon its face so distinctly a mortgage that it can be called by no other name.

If the proof had shown without doubt that Kelly stood by, and saw Parks sell the property without interposing, and a knowledge of this could be brought home to Kelly’s subvendees, he and those claiming under him would be estopped from asserting title. But however suspiciously the evidence would lead us to regard the acts of these parties, it is insufficient to prove such a fraud.

The judgment is reversed, and the cause remanded.