decision in the case of Harkness v. Hyde is therefore no longer authority upon the point made in the appellant's brief. Our conclusion is that the railroad and property of the appellant is subject to taxation, notwithstanding its location and situation upon the Fort Hall Indian reservation. The judgment of the district court is affirmed. MORGAN, C. J., and Buck, J., concurred. JONES v. ST. JOHN IRRIGATING COMPANY, Filed February 18, 1884. ON APPEAL FROM A JUDGMENT, WITHOUT A STATEMENT OR BILL OF EXCEPTIONS, nothing belongs to the record except the judgment roll, and no question arising outside the roll can be considered. The mode of presenting questions not arising on the judg ment roll for review on appeal is by statement or bill of exceptions. ON APPEAL THIS COURT CAN ONLY NOTICE THE ERRORS COMMITTED AGAINST THE APPELLANT, not those committed against the successful party. APPEAL from a judgment of the district court for Oneida county, entered in favor of the defendant. The opinion states the facts. Heed & Standrod, and James L. Onderdonk, for the appellant. PRICKETT, J. This action was commenced in the district court of Oneida county by the filing of a complaint therein, September 12, 1883. The object of the action was to recover as damages the sum of one thousand dollars, alleged to have been sustained by the plaintiff by reason of the diversion by defendant of water from plaintiff's premises, to which he alleges he was entitled for irrigation. The amended answer of the defendant denies that it at any time diverted any water from the stream named to which plaintiff was entitled, and denies that plaintiff has been injured by the defendant in the sum of one thousand dollars, or any other sum whatever. Upon the issues made by the complaint and amended answer, the cause was tried by jury and a verdict and judgment were rendered for plaintiff for the sum of fifty dollars. A question having arisen in the court below as to whether the plaintiff was entitled to recover his costs upon a verdict for less than one hundred dollars, under the statutes, the court below awarded the plaintiff his costs. The plaintiff appealed from the judgment. A paper purporting to be a bill of exceptions has been stricken out of the transcript, on motion, because it was not settled and filed in the mode prescribed by statute, and the case now stands for review on the judgment roll alone. On an appeal from a judgment without a statement or bill of exceptions, nothing belongs to the record except the judgment roll, and no question arising outside the judgment roll can be considered. The mode of presenting questions not arising on the judgment roll for review on appeal is by statement or bill of exceptions properly settled, signed, and filed. It is urged by respondent's counsel, that though the court has stricken out the bill of exceptions, the chief questions in dispute can be reviewed upon the record as it still stands; that there is no issue formed by the complaint and amended answer; that the amended answer is evasive; and that the plaintiff was entitled to judgment on the pleadings in the court below; but we think the denials of diversion by the defendant and damages sustained by the plaintiff do certainly raise material issues between the parties to the action. Another point made by the appellant's counsel is that the amended answer, after filing and verification, was again amended by striking out certain matter, and that after being so reamended it was never verified, and that it thus became an unverified answer to a verified complaint, and for that reason should not be considered as an answer at all; but these objections do not appear upon the face of the judgment roll, and if they existed, should have been brought into the record by the proper objec tions and bill of exceptions. On the part of the respondent, it is urged that under our statutes, in an action for damages, where the plaintiff recovers less than one hundred dollars, he is not entitled to costs, and that the allowance of costs to the plaintiff by the district court was error which can and should be corrected here, but on appeal this court can only notice the errors committed against the appellant, not those committed against the successful party, or the respondent in the appeal: Seaward v. Malotti, 15 Cal. 304; Travers v. Crane, Id. 12; Stevenson v. Smith, 38 Id. 102. The judgment is affirmed. MORGAN, C. J., and Buck, J., concurred.' WINTERS v. SWIFT ET AL. Filed February 19, 1884. DEED ABSOLUTE ON ITS FACE, WHEN A MORTGAGE.-A deed absolute on its face, given by A. to B., for real estate therein described, and a bond given by B. to A., agreeing to convey to A. a portion of the same property at a stipulated time, although given on the same date and for the same price, if not intended to be a mortgage or security for money by the parties themselves, and do not appear to be such on the face of the instru ments, will be held to be an absolute bargain and sale, and not a mortgage. THE INTENTION OF THE PARTIES IS TO BE LEARNED, first, from the instruments themselves; secondly, from parol testimony; and when ascertained, will be carried out by the courts. APPEAL from a judgment of the second judicial district court for Alturas county, entered in favor of the defendants. The opinion states the facts. F. Ganahl, L. Vineyard, and D. E. Waldron, for the appellant. MORGAN, C. J. It appears from the evidence and the findings of the court in this cause, that Wilhelm Jaikowski was the owner and in possession of a two-thirds interest in the North Star mine and a one-half interest in the American Eagle mine, both situated in Warm Spring district, Alturas county, Idaho; that one Riley was the owner of the one third of the North Star mine, and one half of the American Eagle; that in working said mines, Jaikowski, prior to the seventh day of September, 1881, had become indebted to Pinkham & Leonard in the sum of two thousand and eighty-two dollars and ninety-eight cents, for which he had given his note and mortgage on one third of the North Star mine, dated respectively January 7, 1881; that he was then also indebted to J. O. Swift & Co., a firm composed of J. O. Swift and T. E. Clohecy, both defendants herein, to the amount of between three thousand and four thousand dollars; that to pay off said indebtedness, and obtain means to work said mines, Jaikowski, about the first of March, A. D. 1881, employed defendant Clohecy to go to Salt Lake City and procure a loan of six thousand dollars; to enable Clohecy to secure said loan, Jaikowski executed to said Clohecy a note for six thousand dollars, with place where payable and name of payee in blank, dated March 1, 1881, and due in five months from date; he also executed to Clohecy a power of attorney to sell or mortgage his interest in said North Star mine; that Clohecy thereupon went to Salt Lake City and secured a loan from McCormick & Co. in the sum of six thousand dollars; that Clohecy delivered to said McCormick & Co. the said promissory note, properly filled out and indorsed by him; that he also, for the purpose of securing said note, executed a trust deed conveying Jaikowski's interest in the North Star mine to William H. Greenhow and George A. McCormick, with power to them or the sheriff of the county to sell said interest on default of payment of the debt. With the six thousand dollars thus obtained, Clohecy paid off various items of indebtedness due from Jaikowski, including the debt due Pinkham & Leonard. During the summer of 1881 Jaikowski made various attempts to sell his interest in the North Star mine; employed Clohecy and others to aid him in effecting said sale. The mine was not sold. The latter part of August, Jaikowski went to Salt Lake. The note and trust deed were coming due September 1, 1881. Jaikowski attempted to get further time on the six-thousand-dollar note, which was refused by McCormick & Co. About the first of September, J. O. Swift, defendant, went to Salt Lake, and at Jaikowski's request went with him to various persons to effect a sale of the mine, but was unable to do so. After all these failures to sell Jaikowski's interest in these mines, during which he had offered the whole for twelve thousand dollars, he (Jaikowski) offered to sell to Swift, on the sixth day of September, 1881, two thirds of the two mines, all the ore on the dumps, with the cabin, tools, cooking utensils at the mine, and his claim for contribution against Riley, his partner, if Swift would pay the debt to McCormick & Co., his debt to J. O. Swift & Co., and furnish him money to go back to Idaho. Swift, after seeing McCormick & Co. and obtaining further time on that debt, on the seventh day of September told Jaikowski that he would accept his offer, and would pay the debt to McCormick & Co. and the debt to J. O. Swift & Co., and would furnish him sixty dollars to return to Idaho,if Jaikowski would sell the property to him at that price. The terms, as above stated, being agreed upon by both parties, they went together to the office of W. C. Hall, an attorney; the terms of the sale were stated to the attorney in the presence of both parties, and he was directed to draw up a deed for two thirds of both mines, a bill of sale of all the ores on the dump of said mines, all the tools, cabin, cooking utensils, and an assignment of Jaikowski's claim for contribution against his mining partner, Riley, for the consideration aforesaid, which was stated to be eleven thousand and fifty-eight dollars and forty-nine cents. The attorney drew the said deed, assignment of claim for contribution, and bill of sale of tools, etc., all absolute on their face, according to instructions given in the presence of both parties. These papers were duly No. 11-3 signed by Jaikowski and acknowledged before a commissioner of deeds, the parties going to another office for the purpose of acknowledgment. Shortly after the execution of these papers, and the same day, the parties again appeared in the office of Hall, the attorney aforesaid, and Swift directed Hall to draw up a bond for the conveyance of the two-thirds interest in the two mines by Swift to Jaikowski on or before the seventh day of December, A. D. 1881, in case the latter should pay him the sum of eleven thousand and fifty-eight dollars and forty-nine cents. This was accordingly done, signed by Swift, and delivered to Jaikowski. As soon as the papers were completed, Swift went with Hall to MeCormick & Co., paid the interest on the six thousand dollars to September 1, 1881, amounting to one thousand and eighty dollars; assumed, in the name of J. O. Swift & Co., his firm, the payment of the note of six thousand dollars, in consideration of which McCormick & Co. reduced the rate of interest to one per cent. per month. On the same day Swift wrote to his firm at Ketchum, stating that he had bought out Jaikowski, and directed them to charge the account due the firm from Jaikowski to his private account, which was accordingly done. Swift paid Jaikowski the sixty dollars to return to Idaho, and also paid for Jaikowski ten dollars to the attorney for drawing the papers. In the latter part of September or first of October Swift went into possession of the mines and other property, and has continued to hold and work them until the present time. On the tenth day of October, 1881, Jaikowski executed to one Shaeffer, consideration being an open account, four hundred and thirtytwo dollars, or four hundred and fifty-two dollars, and some small sums of money, the amount of which the parties were not able to state, a decd for the two-thirds interest of the said mines, and assigned to him the bond. This sale, as Winters, plaintiff herein, testifies, was negotiated and promoted by him, and he states he had had his eye on this property as being valuable ever since he came to Wood River. On the seventeenth of November, 1881, Shaeffer executed to plaintiff Winters a deed to said property and assigned to him the bond. On the third day of December, 1881, plaintiff John B. Winters commences this suit, files his complaint, praying that said deed to Swift of September 7, 1881, and bond to Jaikowski, be declared a mortgage, and that said plaintiff be allowed to redeem; that to ascertain the amount to be paid to Swift an accounting be had between J. O. Swift & Co., T. E. Clohecy, and J. O. Swift and Jaikowski, with various other prayers not now necessary to mention. To the said complaint the defendant Swift answered, and averred that the said transaction that took place between himself and Jaikowski on said seventh day of September, 1881, was an absolute bargain and sale of all said Jaikowski's interest in said mines to defendant Swift; was never intended or understood by either party to be a mortgage; that said bond was executed and delivered to said Jaikowski to give him an opportunity to repurchase said mines, if he desired so to do, on or before the said seventh day of December, 1881. Defendant Clohecy answered, denying any interest in the transaction of September 7, 1881, or any interest in the result of the suit substantially. The cause was tried before the court at the July term of the district court in and for Alturas county, and resulted in the following findings by the court as conclusions of law: 1. That the transaction of the seventh of September, 1881, between Jaikowski and the defendant Swift was one of bargain and sale, and not one of security for debt. There being no pre-existing debt, no loan at the time, and no continuing indebtedness, there could be no mortgage, and the deed operated as an absolute sale and conveyance of the property to Swift. 2. That the bond from Swift to Jaikowski was not a defeasance of the deed, but simply an option to repurchase. 3. Neither Jaikowski nor his assigns having tendered the stipulated price within the period limited, the plaintiff 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. Plaintiff 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 preexisting 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 on Mort., sec. 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, |