is not entitled to relief. (4) That, upon the whole case, the equities are with the defendants and they are entitled to judgment for the dismissal of plaintiff's bill of complaint and for their costs in the action.

Plaintiffs made a motion for a new trial, which motion was denied by the court. From the judgment of the court denying the motion for a new trial an appeal is taken to this court, and the following errors assigned: The court erred in its conclusions of law, and the same are not justified or supported by the evidence in the case, in this, to-wit:

(1) The transaction of the seventh of September, 1881, between Jaikowski and Swift was one of mortgage and not of sale, there being a pre-existing and continuing debt carrying interest beyond the seventh day of September, 1881. (2) The bond from Swift to Jaikowski being signed on the same day, and witnessed by the same parties, and acknowledged by and before the same officer, expressing the same consideration and for the same property as that in the deed from Jaikowski to Swift, was a defeasance to the deed and constitutes with it one instrument, viz., a mortgage, and the action being brought for a redemption and praying an account, no tender was necessary. (3) The promissory note of McCormick & Co. is usurious and no claim for interest thereon can be collected, as the same was made and delivered in this territory and not in Utah. (4) That upon the whole case the equities were with the plaintiff,-in debt, pressed by his creditors, wanting time, everything tends to show that he was not a free man,-and that in doubtful cases of like character the law always construes transactions of like character a mortgage and not a sale.

It will be at once seen that the main question, in short, almost the only question, before the court, is, was the transaction between Swift and Jaikowski on the seventh of September, 1881, a sale, with a bond giving Jaikowski an option to repurchase, or was it a mortgage? In construing any instrument the first matter to be examined is the language of the instrument itself. The ordinary provision in a legal mortgage is that in case the grantor shall pay or cause to be paid the sum mentioned in the deed, with interest thereon, then the deed. shall be void, otherwise, etc., or any words equivalent to these in the deed itself which shall indicate that it was intended as a security for money loaned, or security for the payment of a debt by the parties to such instrument, then it is a mortgage. 1 Jones, Mortg. § 242; Adams v. Stevens, 49 Me. 362. Upon the most cursory reading it will be at once seen that the deed from Jaikowski to Swift, executed on the seventh of September, 1881, contains no such provision, and none equivalent thereto; it is a deed pure and simple; it is not claimed to be other than an ordinary deed in and of itself. Was there any separate deed executed at the time, or soon thereafter, which was intended by the parties as a defeasance?

It is claimed by the plaintiff that a bond for a deed, which was executed by Swift to Jaikowski soon after the deed was executed, was a defeasance, and was so intended by the parties thereto. The same rules of construction must be applied to this as to the other, that is, (1) does the instrument itself show upon its face that it was so in

tended? Upon examination it will be seen that it makes no reference to the deed whatever. There is nothing in it which shows that it had any reference whatever to the deed that had before been executed. There is nothing in it which indicates that Jaikowski was indebted to Swift in any sum whatever; nor is there anything in the deed which indicates that Jaikowski is indebted to Swift. Taking both instruments together, and assuming that they were both executed at the same time, and there is nothing which shows that they were intended as a mortgage. There is no obligation on the part of Jaikowski to pay, and no continued indebtedness, and no intimation of such an obligation. In this case the defendant Swift had no remedy against the person of Jaikowski; there was nothing in either or both of the papers executed which would enable Swift to obtain a judgment against Jaikowski. There is no acknowledgement of a pre-existing debt, nor any covenant for repayment. These must exist in order to constitute it a mortgage. See Conway's Ex'rs v. Alexander, 7 Cranch, 236; Henley v. Hotaling, 41 Cal. 28; Farmer v. Grose, 42 Cal. 169; Flagg v. Mann, 14 Pick. 478.

There being nothing in the deed, nothing in the bond, nothing in both, if construed together, to constitute the transaction a mortgage. we must next inquire into the intention of the parties at the time the deed was executed. This is to be gathered from the testimony. Hall, the attorney who drew the deed, and who is a disinterested witness, testified that Swift and Jaikowski came into his office. Swift, in presence of Jaikowski, said he had bought a two-thirds interest in North Star and American Eagle; asked me to draw a deed, which I diú, and explained the legal effect thereof to Jaikowski. The parties agreed upon the consideration and I put it in. Some time after deed and bill of sale of cabin and tools were executed, Swift said he had concluded to give Jaikowski a bond, so that he might have a chance to turn round, which I then drew up, and Swift signed it. There was nothing said about its being intended as a mortgage or security for any debt. I would not be positive. When the deed was signed something was said about giving bond back. The bond was signed when Swift came back, within half an hour.

Swift, defendant, testifies Grosbeck and Jaikowski had been talking about a sale. Jaikowski told me about Grosbeck wanting the property. I went to Grosbeck and told him I would take half the mines if he would take half at $12,000. Grosbeck refused. Jaikowski offered both mines, North Star and American Eagle, for $12,000. I did all I could to assist him to sell the property. to Chambers to buy the property with him, but he also refused. I went to several mining men after that for Jaikowski, but could get none of them to take it. Jaikowski came to me every day to do something with the property. On the sixth of September, 1881, Jaikowski said if I would pay the McCormick & Co. note and the J. O. Swift & Co. debt, and give him money enough to go back to

Wood River, he would give me his entire interest in the two mines. I told him I would see McCormick, and that I might trade with him. Saw McCormick, and then told Jaikowski I would take property at his proposition. Deed was drawn up and acknowledged. I paid the interest on McCormick's note and assumed the payment of the note, assumed payment of J. O. Swift & Co. debt, paid Jaikowski $60, and Hall $10. When we were coming back from getting deed acknowledged I told Jaikowski I would give him a bond for 90 days if he wanted. We went back to Hall's office, and I did so. The transaction between us was understood to be a sale, and not a mortgage. The bond was spoken of first when we were returning from having deed acknowledged.

On the twenty-eighth day of October, 1881, Jaikowski made an affidavit before Greenhow that the sale to Swift was absolute and bona fide, and was not made as a security for payment of any debt; that Shaeffer and Winters, plaintiff, had induced him while intoxicated to make an affidavit to the contrary.

Peter Wise testifies that between the tenth and fifteenth of September, 1881, Jaikowski, after his return from Salt Lake, said that he had sold North Star and American Eagle to Jim Swift, told me the terms, and said he was glad Swift had taken it, for he did not want McCormick to get it for the $6,000, and that Swift had given him a bond. Stiner testifies that he had a conversation with Jaikowski in September or October, 1881, in presence of Wise, in which Jaikowski said he had sold the North Star and American Eagle to J. O. Swift. Greenhow and Clohecy testify to similar conversations with Jaikowski, in which he told them he had sold all out to Swift. On the part of the plaintiff, Jaikowski testifies as follows: On the sixth of September, 1881, I met Swift, and he said if I would give him security on the North Star and American Eagle mines, my claim against Owen Riley for his one-third due for all the debts incurred on the North Star, embracing the McCormick & Co. claim of $6,000 and interest, and the debt to Swift & Co., claimed to be $3,598.15, my cabin, tools, etc., ore on the dumps, he would pay off the debts, and give me three months' time, and if any ore was sold in the meantime he would give me credit. I told him "all right;" and he told me to meet him next day and see what he could do. I saw Swift next day. He said everything was ready. We went into the lawyer's office and sat down. The lawyer finished the papers; read them to me. I signed two papers then, and Swift signed one. Swift took them all and went to the commissioner or notary public. I signed the deed and bill of sale to Swift, and he signed the bond and gave it to me.

This is substantially all the testimony upon both sides with refer ence to the intention at the time of the execution of the deed and bond.

If we leave out the testimony of the two parties, Swift and Jaikowski, and take the instruments with the testimony of Hall as to what

was said by the parties at the time of their execution, the manner of their execution, with the statement of Jaikowski to Stiner, Wise, Greenhow, and Clohecy, the conclusion is irresistible that the intention of the parties was to make an absolute sale, with a bond allowing Jaikowski to repurchase within the time stipulated. The testimony of Swift is strongly corroborated by testimony of Hall and all the wit nesses to whom Jaikowski had talked, and also by the affidavit made by Jaikowski before Greenhow, notary public, as well as the character of the instruments themselves. On the other hand, the testimony of Jaikowski with reference to the intention of the parties, is not at all corroborated by any of the circumstances nor any witness. The proof is also complete that there was no negotiation between the parties respecting a loan of money; no proposition respecting a mortgage; all the conversation between Jaikowski and Swift and other parties was in reference to bargain and sale. During the summer before, Jaikowski, with those whom he had employed to assist him, were all the time trying to sell the mine. This deed was not given to secure a preexisting debt. Swift had no interest in the McCormick & Co. debt, and only a partial interest in the debt to J. O. Swift & Co. These are all given as strong indications of absolute bargain and sale, and not of mortgage. Conway's Ex'rs v. Alexander, supra. When there is no debt and no loan, an agreement to resell will not change an absolute conveyance into a mortgage. Henley v. Hotaling, 41 Cal. 25; Glover v. Payn, 19 Wend. 521; Rich v. Doanee, 35 Vt. 125; and other cases cited in 41 Cal. 25. The question as to inadequacy of consideration cuts no figure whatever, as the complaint alleges that the mines at the date of the commencement of the suit, December 3, 1881, were worth $100,000. It is entirely immaterial what they were then worth. The only proper question would be what were they worth on the seventh of December, 1881,-a matter not put in issue by the pleadings.

It is urged by the plaintiff that when the deed and defeasance are executed at the same time, or are agreed upon at the same time, it is a conclusion of law that they constitute a legal mortgage. 31 Pa. St. 131 and 295 are cited to sustain the position. It is clear that when the separate instrument is intended as a defeasance by the parties that this principle is correct. Both the cases cited are cases where the parties both intended the instruments as mortgages, and denominated them as such on the face of the instruments. It is also indicated by the proof that one was a loan of money, and the other a loan of credit upon which to raise money. Neither case is at all like the one at bar, and it is remarkable that they should be quoted as sustaining the principle that a separate agreement for repurchase is by operation of law a mortgage.

Again, it is asserted that at law an absolute deed and separate defeasance or agreement to reconvey, executed at the same time, amount to a mortgage, and a large number of cases are cited. It is

only necessary to say that where the parties intended them to be such, and such intention is indicated either on the face of the instrument or by parol testimony, then they are such, and not otherwise, and this only is indicated by the cases cited, beyond question. There is no case that we have yet been able to find which holds that an absolute deed, and a bond to convey the same property when not intended as mortgage, or security for money, as evidenced by the deed or parol testimony, is held by the court to be a mortgage. A large number of cases which were cited by the plaintiff have been examined, and they all tend to the same point, that when the parties intend the instruments as simply a security for money, then they are construed as mortgages by the courts, and this intention of the parties is to be ascertained-First, from the instruments themselves; secondly, by parol testimony.

The third error assigned is that the promissory note given to McCormick & Co. is usurious, and no claim for interest thereon can be collected, as the same was made and delivered in this territory, and not in Utah. The evidence shows that Jaikowski executed a note in blank, and gave Clohecy a power of attorney, authorizing him to sell or mortgage his interest in the mines to raise money in Salt Lake City, Utah. Clohecy was the agent of Jaikowski, and executed and delivered the note and trust deed to McCormick & Co., in Utah. They are not usurious, therefore, being in accordance with the laws in force there.

It is therefore concluded by the court that the instrument executed by Jaikowski to Swift, September 7, 1881, is an absolute deed, as the result of a bargain and sale of the property therein described; that the bond given by Swift to Jaikowski, of the same date, is an agreement to convey a portion of the same property upon the payment of a sum of money at a stipulated time, which has not been either paid or tendered, and that they are not, and were not, intended to be a mortgage or security for money.

The judgment of the court below is therefore affirmed.

PRICKETT and Buck, JJ., concurred.

(2 Idaho [Hasb.] 40)

GENERAL CUSTER MINING Co. v. VAN CAMP.

Filed February 14, 1884.

The right to appeal is statutory, and unknown to the common law; it cannot be extended to cases not within the statute.

The board of county commissioners and the board of equalization, although composed of the same persons, are separate and distinct bodies, with different duties and powers.

The right of appeal given by statute from orders of the board of commissioners does not imply the right of appeal from orders of the board of equalization.