In order to convert a deed, absolute on its face, into a mortgage, the evidence must be so clear as to leave no doubt that it was the intention of the parties to execute a deed, and as the evidence was conflicting, the verdict will not be disturbed. (Henley v. Hotaling , 41 Cal. 27; Hopper v. Jones , 29 Cal. 19; 87 Am. Dec. 46.)

         JUDGES: Searls, C. Vanclief, C., and Temple, C., concurred. Garoutte, J., Harrison, J., McFarland, J.

         OPINION

          SEARLS, Judge

         Appeal from a judgment in favor of defendant, and from an order denying a motion for a new trial.

         The action was brought to have an absolute deed executed by plaintiff to defendant October 4, 1886, conveying a lot of land in the town of Alamo, county of Contra Costa, California, adjudged to be a mortgage, and to permit the plaintiff to redeem, and to require the defendant to execute a deed of conveyance to the plaintiff.

         The complaint, in apt language, set out in substance that on the fourth day of October, 1886, defendant loaned him four hundred dollars, plaintiff to pay interest thereon at one (1) per cent per month, and that as security for the payment thereof to defendant, he, the said plaintiff, executed to defendant a deed of bargain and sale, absolute in form, but understood and agreed to be and operate as a mortgage, etc. The complaint failed to show when the four hundred dollars averred to have been loaned fell due, or that it was in fact due and payable. Defendant demurred to the complaint, which demurrer [33 P. 93] was sustained by the court with leave to plaintiff to amend, and in due time he filed an amendment to his complaint. Defendant answered denying all the allegations of the complaint, averred ownership of the conveyed property in himself. He also filed a cross-complaint showing ownership of the premises in himself, possession in plaintiff under a lease, from month to month, a wrongful holding over, etc., and asked for judgment of restitution, etc. Defendant filed his answer and cross-complaint on the fifth day of August, 1890, and afterward on the 15th of September, 1890, without leave of the court, so far as appears, he served and filed an amended answer and cross-complaint.

         Plaintiff moved to strike out these amended pleadings upon the grounds that they were filed without leave of the court, and that they were sham and irrelevant, etc. The motion to strike out was denied by the court, and the ruling is assigned as error.

         The cause was tried by the court without the intervention of a jury, and the findings negative the theory of the plaintiff that a loan was made to him by defendant, and the deed given as security therefor, and uphold the position of defendant that the transaction was an absolute sale and conveyance absolute, etc. The first error assigned by appellant is that the court erred in sustaining the demurrer to the complaint. There are two answers to this contention: 1. The court did not err in sustaining the demurrer. The complaint failing to show that the money, averred by plaintiff to have been by him borrowed from the defendant, was due and payable, non constat but that the action was prematurely brought. 2. By amending his complaint after demurrer sustained plaintiff waived the error, if any, in the ruling by the court. (Gale v. Tuolumne W. Co ., 14 Cal. 26.)

         The refusal of the court to strike out the amended answer and cross-complaint is assigned as a further error. This assignment of error cannot be considered, for the reason that an order refusing to strike out a pleading is not one of the orders or decisions which are deemed to have been excepted to by section 647 of the Code of Civil Procedure, except when made in the absence of the party complaining. The record fails to show either that appellant excepted to the ruling of the court, or that he was absent when it was made. No bill of exceptions was prepared embodying the action of the court in the premises, without which the notice, motion to strike out, and order of the court refusing such motion, did not become a part of the judgment-roll under section 670 of the Code of Civil Procedure. In the statement on motion for new trial no allusion is made to the motion to strike out the amended pleadings or the action of the court thereon. In the assignment of errors by counsel, on his motion for a new trial, and which, according to the recital, were "errors of law duly excepted to," is that "the court erred in denying plaintiff's motion to strike out the defendant's amended answer and cross-complaint in this case filed and served the twelfth day of September, 1890." This, considered as an assignment or specification of error, is sufficient, but it affords no proof that any such action was ever had. It may be likened to an indictment, or information in a criminal case, which fills an important office in the proceeding, but which, in the absence of proof, is impotent to convict. The other specifications of error go to the sufficiency of the evidence to authorize the decision in favor of the defendant.

         The evidence was quite full as to the nature of the transaction, and whether it was a loan of money by the defendant and the taking of a deed, absolute on its face, merely as security, or an absolute sale, was one upon which there was a sharp and substantial conflict in the testimony.

         The court below found in favor of defendant, and we are not authorized, under such circumstances, in disturbing the findings.

         A deed of conveyance absolute on its face is certainly some evidence that the transaction is what it purports to be, viz., a sale. To establish an equity superior to the deed and authorize a determination that the deed was given as security for an existing debt, the testimony, if parol in character, should establish a clear case. (Hopper v. Jones , 29 Cal. 19; 87 Am. Dec. 146; Henley v. Hotaling , 41 Cal. 22.)

         The judgment and order appealed from should be affirmed.

         For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.