[L. A. No. 591.

Department Two.

December 22, 1899.]

#### OLIVE A. BYRNE, Appellant, v. JOSEPHUS HUDSON, Respondent.

Mortgage by Deed Absolute—Title of Mortgagor.—In this state a deed absolute in form, but intended as a mortgage, is a mortgage, and conveys no title to the grantee named in the instrument.

Id.—Action to Declare Deed a Mortgage—Power of Court—Strict Foreclosure—Erroneous Judgment.—In an action to have it adjudged that a deed from plaintiff’s grantor to the defendant is a mortgage, the court, after having found that it is a mortgage^ has no power under our system to make a strict foreclosure thereof in the action, and to bar and destroy plaintiff’s equity of redemption and other right to the property at the end of twenty days after written notice of the judgment, if the mortgage should not then be paid. Such a judgment is erroneous, though, perhaps, not void, if not appealed from.

Id.—Written Notice of Judgment—Forfeiture of Rights.—The provision in the judgment for a forfeiture of the plaintiff’s rights within twenty days after written notice of the entry of the judgment, if no redemption should be made within that period, must be construed as requiring a separate written notice expressly intended for the purpose of starting the period of time mentioned in the judgment.

Id.—Incidental Recital in New Trial Notice—Knowledge of Judgment.—A mere incidental recital of the rendering of the judgment in a notice of motion for a new trial is not a sufficient compliance with the terms of the judgment respecting written notice; nor is the actual knowledge by plaintiff of the rendition of the judgment material upon the question of such compliance.

Id.—Final Judgment Barring Plaintiff’s Rights—Appeal.—A subsequent judgment assuming to bar the plaintiff from all equity of redemption or other right to the mortgaged premises, and dismissing the action for noncompliance with the terms of the judgment as to the time for redemption, is a final judgment as respects the rights of the plaintiff, and is appealable by the plaintiff as such.

*255APPEAL from a judgment of the Superior Court of Riverside County. J. S. Noyes, Judge.

The facts are stated in the opinion of the court.

J. W. Stephenson, and Charles R. Gray, for Appellant.

G. A. Skinner, and A. A. Adair, for Respondent.

McFARLAND, J.

The transcript in this case is disjointed and confused; hut, as supplemented by a certificate of the clerk of the lower court filed here at the date of the oral argument, it is discoverable therefrom that this is an appeal hy plaintiff from an order or judgment, rendered August 36, 1897, and entered in the judgment-book October 6, 1897, ordering and adjudging that plaintiff is barred from all equity of redemption, “or other right,” to certain mortgaged premises described in the complaint, and dismissing the action. The parties to the action have produced complications by omissions to assert rights at the proper time and in the proper way, and by acts of such uncertain character as to create embarrassments which ordinary carefulness would have entirely avoided.

It is averred in the complaint, substantially, that plaintiff is the owner of certain described real property, and that defendant has a deed from plaintiff’s predecessor in interest which on its face purports to absolutely convey said real property to the defendant, but that said deed was intended as a mortgage to secure a loan of three hundred dollars, with interest; that she tendered said amount to the defendant and demanded a deed from him, and that defendant refused to accept this money, and claims that he owns absolute title to the premises. The prayer is that the conveyance to defendant “he adjudged to be a mortgage,” and that defendant be decreed to execute a conveyance to plaintiff of the property, and that upon his failure to do so the court appoint a commissioner to make such conveyance. The court found the facts to be as alleged by plaintiff. By the judgment it was decreed that upon the payment by plaintiff to defendant of the sum of three hundred and six dollars—the amount found to be due on the mortgage •—the defendant execute a deed conveying the premises to the plaintiff, and upon his failure to do so that the clerk be ap*256pointed a commissioner for that purpose. The judgment then proceeded as follows: “And if the plaintiff fails to pay to the said defendant the said sum of three hundred and six dollars, without interest, within tAventy days after written notice of the entry of the judgment, that then she he barred from all equity of redemption, or other right to said property.” The part of the judgment last quoted was unwarranted. It is definitely settled in this state that a deed absolute in form but intended as a mortgage is a mortgage, and conveys no title to the grantee named in the instrument. It has been declared that sections 2924 and 2925 of the Civil Code were intended to abrogate the rule stated in *Hughes v. Davis,*40 Cal. 117, and to restore the rule declared in *Cunningham v. Hawkins,*27 Cal. 603, and *Jackson v. Lodge,*36 Cal. 28. (See *Brandt v. Thompson,*91 Cal. 461; *Taylor v. McLain,*64 Cal. 513; *Heady v. O’Brien,*66 Cal. 519; *Raynor v. Drew,*72 Cal. 307.) The rule is stated in *Cunningham v. Hawkins, supra,*as follows: “A mortgage under our system, as between the parties, does not pass the legal title to the grantee. The title remains in the m'ortgagor until it is divested by foreclosure and sale, whatever the terms of the mortgage may be.” In the case at bar, the court, having found that the instrument in question was a mortgage and that the parties occupied the relation toward each other of mortgagor and mortgagee, had no power to bar and destroy the plaintiff’s title to the property at the end of twenty days—as we have under our system no such thing as a strict foreclosure. The court, having declared the instrument to be a mortgage, then seemed to proceed upon the theory that the relation of the parties was that of vendor and vendee under a contract of purchase, and that plaintiff’s rights should be ended unless she paid the purchase money within a certain reasonable time. And the case is not one where the plaintiff was seeking to recover possession of the mortgaged premises, which, of course, could not be done without payment or tender of the amount due by the mortgagor. It seems unavoidable to notice this erroneous feature of the judgment; although, as plaintiff has not appealed from that part of the judgment, she is, perhaps, not in the position now to take advantage of the error.

Treating the judgment, as the parties treat it, as a proper *257and valid judgment, the only two points presented are: 1. Is respondent’s contention that appellant did not pay the money within twenty days after written notice maintainable? and *2.*Was appellant’s appeal from the order of judgment appealed from taken in time?

The judgment provided that the plaintiff should pay the money within twenty days "after written notice” of the entry of the judgment. It is not contended by respondent that he gave plaintiff any formal written notice of the judgment; but on June 38, 3897, he served on appellant’s attorney a notice of a motion for a new trial in which the rendering of the judgment was noticed by way of recital. And the money was not paid within twenty days after that time. There is no question here of the sufficiency of a statutory notice, nor was the mere actual knowledge of appellant of the rendition of the judgment material. The question arose out of the express terms of the judgment, which required "written notice of the entry of this judgment.” We think, therefore, that as appellant’s right in the premises depended upon the commencement of the running of a certain period of time mentioned in the judgment, and as her title was to be forfeited unless a certain act was done within that period of time, she was entitled to a notice expressly intended for the purpose of starting the period of time mentioned in the judgment, and that á mere incidental recital in a notice of a motion for a new trial, given for an entirely different purpose, was not a sufficient compliance with the terms of the judgment.

We also think that the order of October 6th, entered on that day in the judgment-book, by which it was "ordered and adjudged that the plaintiff’s action be and the same is hereby dismissed, and that plaintiff be and she hereby is barred from all equity of redemption or other right to the property set forth and described in said judgment,” was and is as against appellant a final judgment, and that she had six months from its date in which to appeal therefrom. The motion to dismiss the appeal is denied.

The said judgment entered on the sixth day of October, 1897, is reversed, and the cause remanded.

Temple, J., and Henshaw, J., concurred.