held to be a mortgage. Where the transaction is equivocal,22 slight circumstances will determine it to create a mortgage, when that can be

pay any sum to the mortgagee, that the sum to be paid to the mortgagee in case of a resale was several thousand dollars less than the mortgage debt, that no interest was to be paid by the mortgagor, and that the mortgagee at once took possession of the premises with the full beneficial use, the transaction plainly was a conditional sale, or a mere power to sell for a designated sum-not a mortgage at all: Fletcher v. Northcross (Cal.), 32 Pac. 328.

Where an absolute deed of certain property and a contract for a reconveyance thereof were made at different times, but simultaneously delivered, the consideration for the deed being a pre-existing debt, and the contract provided that the grantee in possession would reconvey the property to the grantors upon the payment within a certain time of a certain sum with stipulated interest, less the amount received by the grantee as rents and profits, and that the contract should be deemed merely a contract to reconvey and not an acknowledgment that the conveyance was intended as a mortgage, the transaction amounts to a conditional sale and not to a mortgage, as the intention of the parties as expressed by themselves is worthy of some consideration. "Without it the presumption would be that the deed was intended to operate as a mortgage, and it is clear that the party executing the contract did not intend to subject himself to the consequences of such a presumption. The nature of the transaction seems to have been well understood, and the provision declaring the meaning and intention of the parties must be regarded as one of the conditions upon which the contract was executed': Ford v. Irwin, 18 Cal. 117; same case, People v. Irwin, 14 Cal. 428, 435, 436. This case seems doubtful, for one of the grounds upon which it was distinguished from Hickox v. Lowe, 10 Cal. 199, in 14 Cal. 428, 435, 436, was shown to be erroneous in 18 Cal. 117.

22 Transaction Equivocal.-"The only difficulty

done without violence to the understanding of the parties at the time of its consummation.23

Subdivision 4. What Property Mortgageable.

249. Future Interests Mortgageable.

A mortgage may be given against property to be acquired by the mortgagor after the execution of the mortgage,24 against a crop yet to be which arises in a case like the present is to ascertain the fact whether the debt subsists, or has been extinguished; and where there is doubt on this point, courts of equity lean in favor of the right of redemption, and construe instruments as constituting a mortgage, rather than a conditional sale": Hickox v. Lowe, 10 Cal. 197, 207.

"A conveyance, with an attendant agreement for a reconveyance upon the payment of the amount of the consideration and interest . . . . taken together, in the absence of other circumstances, do not of themselves create a mortgage, but only a defeasible purchase, which should be narrowly watched, lest it may be made the means of converting what was in fact intended as security into an absolute purchase. Slight circumstances will determine the transaction to be one of mortgage, when that can be done without violence to the understanding of the parties': Hickox v. Lowe, 10 Cal. 197, 210.

23 The transaction must be governed by the intention of the parties at the time of its consummation, and not afterward: Harp v. Harp, 136 Cal. 421, 69 Pac. 28.

24 On Property to be Acquired: California Title etc Co. v. Pauly, 111 Cal. 122, 126, 43 Pac. 586.

planted,25 or against the increase of mortgage

able animals.20

250. Every Interest in Immovable Property Mortgageable.

Any interest in immovable property capable of being transferred may be mortgaged.27

25 On a Crop yet to be Planted: Argues v. Wasson, 51 Cal. 620, 21 Am. Rep. 718; Lemon v. Wolff, 121 Cal. 272, 53 Pac. 801; Hall v. Glass, 123 Cal. 500, 503, 69 Am. St. Rep. 77, 56 Pac. 336; Wilkerson v. Thorpe, 128 Cal. 221, 226, 60 Pac. 679.

Thus a mortgage may be given on a crop yet to be planted to secure future advances: Lemon Wolff, 121 Cal. 272, 53 Pac. 801.

26 See section 251, subdivision 18, below.

V.

27 Every Interest in Immovable Property Mortgageable.-Compare the following sections of the Civil

Code.

Section 2947: "Any interest in real property which is capable of being transferred may be mortgaged.'' What Interest may be Transferred.-Section 1044: "Property of any kind may be transferred, except as otherwise provided by this article."

Section 1045: "A mere possibility, not coupled with an interest, cannot be transferred."

Section 1046: "A right of re-entry, or of repossession for breach of condition subsequent, can be transferred.”

Section 1047: "Any person claiming title to real property in the adverse possession of another may transfer it with the same effect as if in actual possession."

Hence it follows:

Section 2921: "A mortgage may be created on property held adversely to the mortgagor."

Thus a vested future interest in lands is mortgageable: Dunn v. Schell, 122 Cal. 626, 55 Pac. 595.

251. Enumeration of Mortgageable Movable

28

Property."

The following kinds of movable property, and none other, are mortgageable:

Under United States Revised Statutes, sections 2262 and 2263, the pre-emptor of land must pre-empt with a purpose in good faith to appropriate the land to his exclusive use, or otherwise he forfeits all interest therein; and any agreement by which the title should inure to any other person in whole or in part is void; and the right of pre-emption is unassignable. But as a mortgage passes no title, a mortgage executed by a pre-emption claimant before final proof and payment to secure the repayment of money loaned to pay for the land, or in any manner to aid such claimant in perfecting his title, is not in contravention of the pre-emption laws, but will be sustained: Whitney v. Buckman, 13 Cal. 536; Stewart v. Powers, 98 Cal. 514, 516, 521, 33 Pac. 486.

Movable property which, by being affixed to land by the owner, has become a part thereof may nevertheless be mortgaged by the owner separately from any other interest in the land by an immovable property mortgage executed as such: Brodrick v. Kilpatrick, 82 Fed. (D. C.) 138.

Under a contract for the sale and purchase of land, the vendor retaining the title which was to be conveyed to the vendee upon payment of the price, the vendee has a mortgageable interest in the land: Houghton v. Allen (Cal.), 14 Pac. 641, 642.

A leasehold interest is mortgaged as real estate: Commercial Bank v. Pritchard, 126 Cal. 600, 603, 59 Pac. 130; McLeod v. Barnum, 131 Cal. 605, 606, 63 Pac. 924. See, also, Johnson v. Sherman, 15 Cal. 287, 293, 76 Am. Dec. 481.

Likewise a possessory interest in lands of the United States under a claim of title: Houseman v. Chase, 12 Cal. 290; Haffley v. Maier, 13 Cal. 13.

28 Enumeration of Mortgageable Movable Property.

(1) Locomotives, engines, and other rolling stock of a railroad,

(2) steamboat machinery, the machinery used by machinists, foundrymen, and mechanics, (3) steam engines and boilers,

(4) mining machinery,

(5) printing presses and material,

Civil Code, section 2955: "Mortgages may be made upon 95n the following personal property and none } other n95:

(1) Locomotives, engines, and other rolling [a] stock of a railroad;

(2) steamboat machinery, the machinery used by 03f [b] machinists, foundrymen, and { f03 { mechanics;

(3) steam engines and boilers;

(4) mining machinery;

(5) printing presses and material;

(6) professional libraries;

(7) instruments of 87m surveyors, { m87 { [c] physicians and dentists;

}

(8) upholstery, furniture [950] [d], and 95nhousehold goods n95 { ;

(9) 93n oil paintings, pictures, and works of art

n93;

(10)93n all n93 growing crops 93n including grapes and fruit { n93;

(11) vessels of more than five tons burden;

(12) 75-6n instruments, negatives, furniture, and fixtures of a photograph gallery { n75-6; (13) 77-8n the machinery, casks, pipes, tubes [e] and utensils used in the manufacture 87n} or storage n87 of wine, fruit brandy, fruit syrups or sugar n77-8; 87n also wines, fruit brandy, fruit syrup, or sugar with the cooperage in which the same are contained n87 { ;

(14) 87n pianos and organs { n87 { ;