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This recital is made for the purpose of showing that the contention of counsel for Bregard et al. that "the hearing was granted on the uncorroborated affidavit of the claimant himself, an affidavit not even based on his own knowledge, but on mere hearsay, of the most indefinite and uncertain character," is in no way sustained by the record.

At the rehearing all parties were fully represented by counsel and evidence, both record and parol, was introduced. That evidence is now before me for consideration.

The first question to be determined is this: Was the deed given by James W. Tice, dated April 5, 1861, to his mother Urhetta Tice, and acknowledged October 21, 1863, an absolute conveyance in fee, or was it in the nature of a deed of trust for the benefit of the other members of the family, and in the nature of a mortgage as security for a claim against the property?

On its face the deed was an absolute conveyance of the premises in controversy.

In the case of Russell v. Southard (12 Howard, 139), the court, in inquiry as to whether a conveyance was a sale or mortgage, took into consideration the condition and relation of parties, the amount of consideration, etc., and held that, "Parol proof is admissible to show a deed absolute on its face to have been intended as a mortgage."

In the case of Hughes v. Edwards (9 Wheaton, 489), the court say: A court of equity looks at the real object and intention of the conveyances; and when the grantor applies to redeem, upon an allegation that the deed was intended as a security for a debt, that court treats it precisely as it would an ordinary mortgage, provided the truth of the allegation is made out by the evidence.

In the case of Henly v. Hotaling (41 Cal., 22), the court say:

When the intention of the parties to a deed, absolute in form, is sought to be ascertained. not in the usual way, by reading and construing the instrument, in connection with evidence to identify the subject matter, the parties etc., but by evidence to establish an equity beyond and outside of the deed, and thus to convert the deed into a mortgage, the evidence ought to be so clear as to leave no doubt that the real intention of the parties was to execute a mortgage, otherwise the intention appearing on the face of the deed ought to prevail.

With these rules for our guidance, the evidence submitted must be examined with a view to ascertain, if possible, the real object and intentions of the conveyance by J. W. Tice to Urhetta Tice, dated April 5, 1861.

The records show that on December 26, 1862, nearly two years subsequent to the deed of gift, J. W. Tice executed a mortgage of the premises in question to secure the payment of a note for $1500, given by him and his father, James M. Tice.

On December 20, 1861, several months subsequent to the deed of gift, J. W. Tice by James M. Tice, his attorney in fact, entered into a contract with J. B. Crockett, an attorney at law, by which he agreed to convey to said Crockett, with covenants only against the acts of said

grantor, for services rendered by said Crockett, an undivided one-eighth interest in the premises in controversy, with the exception of certain specified tracts.

James M. Tice, the attorney in fact, was the husband of Urhetta Tice.

The only explanation that can be given of his action is, that he considered the equitable title, at least, to be in J. W. Tice, and did not recognize the deed of gift as divesting him (J. W. Tice) of the title to the land.

It will be observed that these instruments were executed prior to the date of acknowledgment of the deed of gift, and of recording the same, and in my opinion they clearly indicate what was in the mind of the grantor; they indicate that he regarded himself as the owner of said premises, that the title was in him.

The conveyance, dated April 5, 1861, was not recorded until April 1, 1867. On said deed is the endorsement that it is recorded at the request of Urhetta Tice. At the trial of this case D. P. Smith testified that the grantor J. W. Tice had the deed recorded. However this may be, under date of April 25, 1867, J. W. Tice gave to Lloyd Tevis a mortgage of the premises in question as security for the payment of $4400 borrowed money; and on April 1, 1869, said J. W. Tice gave to Martin Clark a deed absolute for the premises in controversy.

The conveyance would certainly indicate that J. W. Tice considered that he had title to the land, which had not been divested by the deed of April 5, 1861, to his mother.

In what light did the grantee, Urhetta Tice consider this transfer? On April 30, 1868, she entered into a contract with D. P. Smith to convey to him all the lands described in the above-mentioned deed of April 5, 1861. In this contract she agrees,

that she will procure and deliver to said party of the second part a deed to him from Andrew J. Tice, James W. Tice, S. P. Millett, and Pauline V. Millett his wife, of all their right, title and interest of every kind legal and equitable, of, in and to all the land or lands hereinbetore described.

The consideration for this contract was $2000 to be paid to Urhetta Tice, and in addition to said sum, Smith agreed to pay the $4400 borrowed by J. W. Tice, from Lloyd Tevis, to secure the payment of which said Tice had executed a mortgage of the premises in question to Tevis, on April 25, 1867. On May 13, 1868, Urhetta Tice, Andrew J. Tice, S. P. Millett and Pauline V. Millett, executed a deed conveying the premises to D. P. Smith, consideration $7000. In the body of the deed the name of James W. Tice appears as one of the grantors, but he did not sign the deed.

It is not reasonable to suppose that had Urhetta Tice believed that the fee to the land in question was in her by virtue of the deed of April 5, 1861, and that she had the right to convey the same, that she would have agreed to procure deeds from other members of the family, neither

is it reasonable to suppose that the various grantees would have united in a conveyance had they not considered that they had some rights to convey. The consideration, $7000 in round numbers, was the $4400 borrowed by J. W. Tice, and which Smith agreed to pay, and the $2000 which appears to have been the interest of Mrs. Tice, the mother, in the property.

Thus the evidence would indicate that neither the grantor nor the grantee, nor the other members of the family, considered the deed of gift, a deed absolute.

Is there anything in the record to indicate in what light the deed in question should be regarded?

The Tice family, consisting of father, mother, two sons, a daughter and son-in-law, occupied the property in common; it was their home and the ranch was carried on by them.

There is nothing to indicate that it was the intention of the various members of the family to surrender to the mother, or to transfer to her, all their property interest in this home, and which appears to have been the common property of them all.

The only member of the family who testified at the rehearing, was the daughter, formerly the wife of of S. P. Millett, and who, with her husband, was an occupant of the ranch, before and at the time, and subsequent to the conveyance dated April 5, 1861. She testified that the deed "was made to mother to secure us all."

Q. What do you mean by "secure us all?"

A. Because we were all interested in it, my brother was getting reckless and we wanted the property out of his hands.

She further testified that her father could not take the deed in his own name on account of his indebtedness.

She was asked "whether the two thousand dollars to be paid to your mother, Urhetta Tice, upon making the deed by her and other members of the family, was paid to her?"

The deed in question was the one dated May 13, 1868, before mentioned. She testified that $1500 was paid her at the ranch, and the balance in the city of San Francisco.

She also testified that after the death of her husband she (the witness) received the portion due her, as her interest in the ranch, also that J. W. Tice received the amount due for his interest in the property, and by reference to the deed of May 13, 1868, it will be seen that there was expressly reserved from the property transferred, the one hundred and sixty acres occupied by A. J. Tice, the other son; this was presumably a portion, at least, of his interest in the estate.

This evidence is clear and explicit and in connection with the other, throws much light upon the financial transactions of the Tice family, and the relations they held to one another financially. It shows that the deed of gift was not only for the protection of the mother of her interest, but was for the protection of the other members of the family.

Lloyd Tevis, who had taken the mortgage from J. W. Tice to secure the payment of the $4400 borrowed, testified that when he discovered that the deed of gift had been placed on record just prior to the execution of the mortgage held by him, he had an interview with Mrs. Tice and made inquiry concerning said deed, and Mrs. Tice told him that "the deed was only intended to secure her for the payment of two thousand dollars."

The contract dated April 30, 1868, and the deed dated May 13, 1868, is certainly strong corroborative evidence of the truth of this statement.

Moses G. Cobb, a lawyer who was employed to bring the foreclosure suit in 1868 on the mortgage given by Tice to Tevis in 1867, testified that J. W. Tice the grantor and Urhetta Tice the grantee in the deed of gift, both told him that the deed was given simply by way of security, and that for a limited amount, he thinks about $2000.

James W. Tice, the grantor in the deed of April 5, 1861, and the one, who above all others, could have given evidence as to the true intent of said conveyance, is dead. The grantee, Urhetta Tice, though living, refused to appear at the trial, or to give her evidence by deposition, although both parties swear that they endeavored to have her appear and testify.

The evidence shows that on June 28, 1891, five days subsequent to the departmental decision ordering a further hearing in the case, three men, acting in the interest of Naphtaly, had an interview with Mrs. Tice at her home near San Francisco, and in conversation with her in relation to the character of the deed dated April 5, 1861, she made and subscribed to the following statement:

That at the time of my receiving from my son James William, a deed to the Tice ranch, that there was due and owing to me the sum of $2500 and the reason of the giving to me said deed was to secure me from any loss as to said $2500.

It is shown that this statement in substance was made in the absence of undue influence. After the evidence in relation to this statement was submitted at the hearing, Urhetta Tice, after an interview with Josiah S. Smith, one of the contestants, made the following affidavit:

I, Urhetta Tice, being duly sworn, depose and say, that I am the same Urhetta Tice named in a certain deed made by my son, James W. Tice, on the 5th day of April, 1861, for love and affection and better maintenance and support; that said deed was not made to secure the payment of $2500, or any other sum of money due me from my son James, nor was my said son indebted to me when said deed was made, but said deed was made for my sole use and benefit, and the same was intended to be and was an absolute conveyance to me of the property, and was made for the express purpose of securing me a home, and not otherwise.

This was purely an ex parte affidavit taken without notice to the opposite party and with no opportunity for cross-examination. Objection was made to its introduction, and it can not be taken as evidence; but even if it could be received, it simply demonstrates that the party will,

either with or without a full understanding of the import of her words, make statements directly at variance with each other on the same subject, under different circumstance, and her evidence is of little or no value, on either side.

The only parties who appeared as witnesses for the contestants, were D. P. Smith and Josiah S. Smith both claimants adverse to Naphtaly. An attempt is made to throw discredit upon the testimony of Mrs. Remington, formerly Mrs. Millett, the daughter, by asserting that she had made statements different from those made under oath. Thus, on December 15, 1891, Josiah S. Smith testified that on the day before he had an interview with Mrs. Remington who said to him, referring to the deed of April 5, 1861, that said "deed was given from her brother to her mother for a home for her mother and the children." On the same day D. P. Smith testified that on the day before he had an interview with the witness, who said referring to the deed of April 5, 1861, that "it was deeded to the old lady to keep the boys from spending the money during her life time." I think it is evident from these varying statements, that these witnesses give their interpretation of what Mrs. Remington said, rather than what she actually did say, and their testimony did not impeach her clear and positive evidence.

D. P. Smith testifies that he was the agent who attended to the business of Mr. Tevis in his transaction with the Tices when the $4,400 was borrowed, that he was interested in having the agreement of April 30, 1868, perfected, that he visited Mrs. Tice in company with Tevis and he states that in that interview nothing was said about the deed of April 5, 1861, "being intended to secure a loan of $2,000 from James W. Tice to his mother," further on he states that at that interview nothing was said about said deed being intended simply as a security for a loan of $2,000, or any other amount. When this evidence is analyzed in connection with the other evidence in the case, it will be found that it does not amount to a contradiction of the evidence submitted by Naphtaly. No where in the record is there any evidence that the deed of April 5, 1861, was made as a security for a loan, no where is there any attempt made to show that the mother had loaned money to the son, and had taken this deed as security.

The evidence of John A. White throws much light upon this transaction.

The deed from Pujol and Sanjurjo to James W. Tice was made February 14, 1855. Mr. White testifies that in the spring of 1855 he was a partner of James M. Tice (the father) under the firm of Tice and White, that the firm purchased the interest in the Romero ranch. His testimony is as follows:

When we purchased that place, it was purchased for James Tice and myself. The consideration was from $3,000 to $3,500. We gave our note for that amount, and took possession of the place. But the deed was first made to J. M. Tice and White, then his family came out here; then J. W. Tice came out here about that time. Then

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