and an order denying his motion for new trial, he appeals. Affirmed. F. R. McNamee, of Los Angeles, Cal., and Leo A. McNamee, of Las Vegas, for appellant. Geo. B. Thatcher, Atty. Gen., and A. S. Henderson, Dist. Atty., of Las Vegas, for the State. COLEMAN, J. Appellant and two others the crime of burglary in the first degree. were charged jointly in Clark county with The jury brought in a verdict of guilty as to appellant, and not guilty as to the other defendants. This appeal is taken from an order denying a motion for a new trial and the judgment. actually discovered by the enginemen in time to avoid the accident; but the fact may be established by circumstantial evidence. If in this instance it had been made to appear that Koleff was walking upon the railroad track in broad daylight, 200 feet or more in advance of Middleton's locomotive, that he was apparently unaware of danger, that the view from the locomotive was entirely unobstructed, that the enginemen were at their respective posts of duty on the locomotive, and were keeping a lookout ahead in the direction of Koleff, that the locomotive could have been stopped within from 10 to 30 feet, considering the speed at which it was moving, no one would question the right of a jury to say that Koleff's position was dis- into the mill of the Searchlight Mining & It was charged that the defendants broke covered in ample time to avoid striking him, Milling Company and stole therefrom nine or even in the face of the positive testimony of ten amalgamating plates. The evidence the enginemen that they did not see him at all until he was struck. In other words, a against defendants was entirely circumstanparticular combination of circumstances may tial, and the only error assigned is that there be more convincing than direct evidence, was no evidence upon which a verdict of whose probative force depends upon the guilty could be based; and that even if there veracity of witnesses more or less interested. was evidence that appellant burglarized the While the case presented by the evidence be- mill, there was a total failure to show that it fore us is not so complete as in the supposi-sential ingredient of burglary in the first dewas done in the nighttime, which is the estitious case above, we think it is sufficient to justify the verdict. The other assignments do not call for any discussion. No reversible error appears in the record. The judgment and order are affirmed. Affirmed. gree. [1] It has been held by this court in numerous instances that a criminal case will not be reversed for insufficiency of the evidence if there is substantial evidence to support the verdict. State v. Thompson, 31 Nev. Appellant finds no fault 217, 101 Pac. 557. BRANTLY, C. J., and SANNER, J., con- with this rule. cur. (39 Nev. 159) STATE v. WHITAKER. (No. 2206.) (Supreme Court of Nevada. Feb. 1, 1916.) 1. CRIMINAL LAW 1159-APPEAL AND ERROR-REVIEW-EVIDENCE SUPPORTING VER DICT. Judgment in a criminal case will not be reversed for insufficiency of evidence where the verdict is supported by substantial evidence. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. 1159.] 2. BURGLARY 41-CONVICTION-SUFFICIEN CY OF EVIDENCE. In a prosecution for burglary in the first degree, evidence held to justify verdict of guilty against a defendant. [2] Witnesses in behalf of the state testified that the plates in question were in the mill on July 13, 1915, but that on the 15th of that month it was discovered that the mill had been broken into and the plates taken Out. When it was discovered that the mill had been burglarized, the deputy sheriff at Searchlight, 2 miles away, was notified, and he at once took steps to apprehend the guilty parties. He called to his assistance a number of men in the vicinity. It was sought to track the persons who had committed the crime. One of the lessees of the mill testified that shortly after the "clean-up," which took place about July 1st, he put papers on the plates to protect them. Some of the witnesses testified that they traced fragments of papers and small portions of amalgam from from the mill, at which point tracks of horsthe plates for a distance of about 200 feet es were discovered, which were trailed to the camp of defendants. One of the witnesses who did the trailing testified that he had shod the horses, and that a cut-off shoe was put on one foot by him, which enabled him to distinguish the track. It was also testified that in places leading from the mill to where the horses were mounted, and at other points along the trail, there were tracks C. A. Whitaker was convicted of burglary of two men, one of whom wore shoes with in the first degree, and from the judgment hobnails in them, and that on one shoe the [Ed. Note.-For other cases, see Burglary, Cent. Dig. 88 94-103, 109; Dec. Dig. 41. 3. BURGLARY 41-BURGLARY IN THE FIRST DEGREE-TIME OF BREAKING-SUFFICIENCY OF EVIDENCE. In a prosecution for burglary in the first degree, evidence held sufficient to justify finding that the mill was broken into in the nighttime, between sunset and sunrise, as defined by Rev. Laws, § 6634. [Ed. Note. For other cases, see Burglary, Cent. Dig. 88 94-103, 109; Dec. Dig. 41.1 Appeal from District Court, Clark County; Charles Lee Horsey, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes nails were broken from the heel in a particular place, which made the track easy to identify. This witness also testified that after the defendants had been arrested and taken to Searchlight he observed the track of appellant, and it was the same (with some missing nails) as the one he saw leading from the mill and along the trail of the paper, and which he saw in other places leading to the camp of defendants. The plates weighed about 450 pounds; and as the horses were small, and defendants' camp 21 miles from the mill, it was the the ory of the state that defendants thought it too much of an undertaking to have the horses make the trip from the camp to the mill and back, carrying the plates. * a microscope? A. Yes, sir. Q. This amalgam The assays showed values of about $8,000 per ton. The plates were not found in the posses-in it." sion of any of the defendants, but were found on July 27th about 2 miles from the mill, rolled up. At the camp of defendants a canvas was found. One witness testified as to the appearance of this canvas: The horses which it is claimed the defendants used on the night of the burglary had been in charge of one Booth, by whom they were delivered to a son of one of the defendants on July 13th, for the purpose of taking them into California. That night he stayed at the camp of defendants, 21 miles away. According to the evidence for the defense, this boy left the camp of defendants on the 14th and arrived in Barnwell, Cal., that night; but according to the evidence for the state, he did not arrive there until the 17th. The evidence for the state is to the effect that the horses were returned from Barnwell, Cal., 41 miles away, upon telephonic communication, on the 19th, and that they were leg-weary when they reached Searchlight. The evidence on the part of the state also shows that these identical horses made two trips to the camp of defendants and one from there to the mill, the theory of the state being that one set of tracks was made when the horses were taken to defendants' camp by the boy, and that the tracks leading away were made by the horses while the defendants were using them to go to the mill to burglarize it, and the others on their return to the camp. "Q. What marks, if any, did you find on the canvas? A. A long, narrow mark, taking up about the length of the canvas. Q. Resembling what? A. Well something hard enough to make that mark had been resting against it, and alsoQ. Will you pick out the canvas that you say you saw? A. Yes, sir (witness examines first piece of canvas). That doesn't show anything extra. (Witness examines second piece of canvas.) That is one of the marks, guess. Q. This mark along here? A. Yes, sir. Q. What is the color-what color does that mark resemble? A Sediment and mud. Q. Off of what? A. It may have been from the plates, and it may have been-where that piece were cut out it was thicker and heavier. It isn't so very heavy along here. Q. I call your attention to two holes there where some stuff has been cut out. A. There? Q. Yes. A. Yes, sir. Q. Who cut it out? A. My partner. Q. In your presence? A. No sir; not in my presence. Q. Well I thought you knew about its being cut. What about this? (exhibiting piece of canvas to witness). I direct your attention to a spot here, and will ask you if you know what it is? A. Let me see it first (witness examines canvas). That shows very poorly, but it may be some of the sediment. Q. I call your attention to some pieces of that canvas being cut out. What do you know about that? A. I was not present when that was cut out. Q. Where were these pieces of canvass when you saw them? A. Laying at the door, beside the old pack saddle. Q. At whose door? A. At the cabin door of the camp where these boys were camping. Q. What the two defendants who were acquitted, tesboys? A. Craigs and Whitaker. * * * Q.tified that they were at work at their propYou may state whether you made an examina-erty all of the time from the 12th to the 17th tion of the canvas before the pieces were cut of July, on which last-mentioned day the arout? A. I did. I examined this with a glass. Q. A microscope? A. Yes, sir. Q. What was the result you found? A. Why you could see the amalgam on this canvas with a glass at that time, but it was loose on the canvas. Q. It wasn't ground into the canvas? A. No; not where I could see, it wasn't. Q. Did you find amalgam in these pieces that were cut out? A. Well, you couldn't see it. Q. I mean with the glass did you find it? A. Well, yes; where those pieces were cut out you could. Q. Did you make any other examination of these canvases? A. No; just examined where those marks were on there. Q. Did you examine this line? A. Yes, sir. Q. What did you find? A. I found amalgam along there, and you could Each of the defendants, and a brother of rests were made. It is upon these circumstances that appellant was convicted. Can we say that there was no evidence to justify the verdict? It may be that had we heard the testimony we would have acquitted appellant, but we cannot say that the jury was not justified in finding him guilty. It is claimed that the testimony was the same against all of the defendants, and that if the jury did not think all of the defendants guilty they should have acquitted appellant. We do not think this there were only two men tracked from the to see; and since nighttime is from sunset mill. The tracks of one indicated that they to sunrise (section 6634, Rev. Laws), and were made with hobnail shoes. Evidence since in the middle of July there is in Nevawas offered to the effect that appellant wore da a long space of time both after sunset and hobnail shoes, while the jury could not tell before sunrise which is light, we cannot say which of the other two defendants was the that the jury was not justified in inferring person tracked from the mill, and conse- that the mill was burglarized in the nightquently acquitted both. If the jury believed time. As was said in State v. Druxman the testimony of the witness as to the tracks (Wash.) 153 Pac. 382: made by a hobnail shoe leading from the mill being identical with those made by appellant at Searchlight, and also the theory of the state that the amalgam on the canvas was due to the fact that some of the plates were rolled in it, we think the jury was justified in its finding. "The choice between contrary inferences from evidence, like the credibility of conflicting evidence, is always for the jury." In State v. Watkins, 11 Nev. 30, it was shown that certain articles, which were in a room at 9 o'clock at night, were missing in the morning; that it was impossible for any [3] The only evidence tending to show one to have taken them without entering the that the mill was burglarized in the night-room, and they were found in defendant's time is to the effect that candle grease was found in the mill: "Q. Now, Mr. Lund, I would like you to tell me and tell this jury if those plates were on those tables the day you were in there just before the robbery? A. Yes, sir. Q. They were in place and on the table? A. They were. Q. Well, how can you say, then, that this candle grease wasn't on those tables then, when they were covered by the plates? A. You can tell candle grease when it is newly spilled any time. Q. The plates were on top of the candle grease weren't they? You may be able to do that, but you don't understand my question. You say the candle grease was not on those_tables the day before? A. It was not; no. Q. Now, if those tables were covered up by the plates, how could you possibly tell? A. No; but that candle grease would have to be flattened out with those heavy plates on it, and this was a thick grease, standing up this high (indicating). Q. Those plates weigh 400 or 500 pounds? A. They do. Q. And if they set down on those tables how can you tell that candle grease wasn't there? A. Because the weight of those plates would have flattened that candle grease out, and this was not flattened out at all. Yes; that is true enough, but the day before you couldn't say there was no candle grease there? A. No; I couldn't see through the plates. Q. Then if it was covered up by the plates you couldn't have told, so you don't know whether it was there the day before or not; isn't that a fact? A. I know this was newly spilled candle grease. It showed plain evidence Q. You say you had no candles in the mill? A. Yes, sir. Q. You have used candles in the mill haven't you? A. I never, from the time we started, remember the time of it. * * when we used candles there." Q. This is all of the testimony in the record to sustain the finding that the mill was burglarized in the nighttime. What, if any, inference should be drawn from the finding of candle grease in the mill? So far as appears, there were no electric lights in the mill, and we cannot indulge the presumption that there were, particularly since that locality is sparsely settled. The mill was operated only periodically, and was probably run only in the daytime. It is a well-known fact that candles are used to provide light, and it will be inferred that the candle grease found in the mill as was testified to was caused by a lighted candle. A lighted candle is used for only one purpose, and that is to enable one possession between 12 and 1 o'clock the same night. To the objection that the evidence did not establish the burglary, the court said: "It was necessary to show that the entry was effected in the nighttime, and proof that defendant had in his possession, outside of the house, between 12 and 1 o'clock, goods which were in the house at 9 o'clock, and which only could have been obtained by entering the house, was proof of an entry in the nighttime." We cannot say that, in drawing the inference that the mill was burglarized in the nighttime, the jury abused its prerogative. The judgment is affirmed. NORCROSS, C. J., and MCCARRAN, J., concur. 1. (39 Nev. 169) SOUTHERN PAC. CO. v. MILLER et al. (No. 2186.) (Supreme Court of Nevada. Feb. 1, 1916.) VENDOR AND PURCHASER 302- REME DIES OF VENDOR RECOVERY OF PURCHASE Under Rev. Laws, § 5501, limiting the remedy of a mortgagee to an action in foreclosure, where plaintiff, by executory contract, agreed to sell land, retaining title and reserving the right to maintain a suit for the foreclosure of the agreement and any equity of redemption of the purchasers, although, pursuant to the contract, the purchasers went into possession, plaintiff could recover in a personal action for the unpaid balance of the purchase price, not being restricted to an action for foreclosure, as it was not a mortgagee, because a mortgagor holds legal title, and a mortgagee only an equitable lien. Purchaser, Cent. Dig. 88 845-850; Dec. Dig. [Ed. Note.-For other cases, see Vendor and 302.] MORTGAGES 188-MORTGAGEE'S RIGHT. 2. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 469, 471-475, 479-481; Dec. Dig. 188.] 3. VENDOR AND PURCHASER 303 — REMEDIES OF VENDOR ACTION FOR PURCHASE MONEY-TENDER OF CONVEYANCE. for the unpaid balance of the price, the averIn an action by the agreed vendor of realty ment in the complaint that plaintiff was and had been ready to convey, as agreed, upon perform For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ance of the contract by defendants, with an offer to deliver conveyance into court, was a sufficient tender. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. 88 851-861; Dec. Dig. 303.] terest or taxes at the time, place, and as agreed to be paid, that all sums herein agreed to be paid, including the amount owing for unpaid purchase price, shall thereupon, at the option of the party of the first part, become immediately due and payable, and the party of the first part, its successors or assigns, may sue for and Appeal from District Court, Mineral Coun-recover the sum or sums so due for interest, for ty; Peter J. Somers, Judge. Action by the Southern Pacific Company against C. N. Miller and others. From a judgment for defendants, plaintiff appeals. Reversed, and case remanded for new trial. Frank Thunen and W. M. Singer, both of San Francisco, Cal., for appellant. John R. Melrose, of Hawthorne, and Mack & Green, of Reno, for respondents. MCCARRAN, J. This action was brought in the court below to obtain judgment in favor of the plaintiff, appellant herein, against defendants, respondents herein, for the sum of $750, being an unpaid balance, principal on a certain agreement made between appellant and respondents. The agreement, which furnished the basis for the action is as follows: "This agreement, made the 15th day of March, A. D. 1907, between Southern Pacific Company, a corporation created and existing under laws of the state of Kentucky, first party, and C. N. Miller, George F. Thompson, and A. E. Bettles, of the county of Esmeralda, state of Nevada, second parties, witnesseth that for the sum of one thousand ($1,000.00) dollars, lawful money of the United States, to be paid at the times and in the manner and upon the terms and conditions hereinafter set forth, first party agrees to sell to second parties, and second parties agree to purchase from first party, all that certain lot, piece, or parcel of land situate in the town of Mina, county of Esmeralda, state of Nevada, particularly described as follows, to wit: Lot six (6) in block ten (10), as shown and delineated upon the map of said town filed by first party in the office of the county recorder of said county of Esmeralda, on the 18th day of September, 1905, and recorded in Book of Surveys at page 2, records of said county, to which reference is hereby made for further description. "Second parties have paid to first party the sum of two hundred and fifty ($250.00) dollars, and agree to pay the balance of said purchase price, to wit, the sum of seven hundred and fifty ($750.00) dollars, in installments as follows, to wit: Three hundred and seventy-five ($375.00) dollars on or before one year after date; three hundred and seventy-five ($375.00) dollars on or before two years after date-together with interest on the unpaid principal from date until paid, at the rate of 6 per cent. per annum, payable annually, and second parties shall also pay all taxes and assessments of every kind and nature which may prior to full payment of all said installments of said principal and interest thereon be assessed, levied, or imposed upon the premises afore described or any part thereof. "And upon full payment of said installments of said purchase price and accrued interest thereon, and all taxes and assessments upon said premises, as aforesaid, first party covenants and agrees to convey said premises to second parties by good and sufficient deed of grant, bargain, and sale, free and clear of all liens and incumbrances made, done, or suffered by it. taxes, or for both, by personal action for the "It is further understood that, subject to this agreement, and during the continuance thereof, second parties shall have the right to take possession of, use, and occupy the premises aforesaid. "This agreement shall bind the successors, heirs, and assigns of the parties hereto. "In witness whereof first party has caused these presents to be signed by its duly authorized land agent, and the second parties have hereunto set their hands the day and year first above written. "Southern Pacific Company, "By Wm. H. Mills, Land Agent. "C. N. Miller. "George F. Thompson. "A. E. Bettles." The court below, among other things, found as follows: fact that plaintiff, by said contract and agree"The court further finds that by reason of the ment, granted to defendants the right to enter into the possession and use, occupy, and enjoy said premises, and by reason of the fact that said defendants did enter into the possession of said premises, and by reason of the fact that plaintiff retained the legal title to said premises as security for the payment of the unpaid purchase price thereof, and by reason of the further fact that said plaintiff, by said contract and maintain a suit or action for the foreclosure and agreement, reserved the right to institute of said agreement and the foreclosure of any and all equity of redemption of said defendants, the said transaction and plaintiff's rights under said contract and agreement was tantamount to, and, in effect, a mortgage upon, the said lands and premises to secure the payment of said unpaid purchase price, and that by reason of the provisions of section 5501 of the Revised Laws of the state of Nevada plaintiff is limited to its remedy by a suit or action for the foreclosure of said mortgage, and this court is without jurisdiction to render a judgment for said alleged debt in this action." Upon the foregoing finding judgment was rendered against appellant. From this judgment, direct appeal is taken to this court. The question to be determined here is: Was the agreement tantamount to and in effect a mortgage? [1, 2] If, as a matter of fact, the relation of mortgagor and mortgagee was established "And it is agreed that time, wherever menbetween the vendor and vendee by the maktioned herein, is an essence of this agreement, and that if the parties of the second part failing of this agreement and the conferring of to pay any sum herein agreed to be paid for in- possession upon the vendee, then the judgment of the trial court must be confirmed, because | ute section 5501, did not apply to such a case. section 5501, Revised Laws, limits the rem- To the same effect is the case of Wood v. edy available to appellant as mortgagée to Mastick, 2 Wash. T. 64, 3 Pac. 612. an action in foreclosure. The statute provides: As we said at the outset, the vital question presented here is as to whether or not the relationship between the parties, created by the contract of sale, was that of mortgagor and mortgagee. We think the most that can "There shall be but one action for the recovery of any debt, or for the enforcement of any right secured by mortgage or lien upon real estate, or personal property, which action shall be in accordance with the provisions of this chap-be said of the contract entered into between ter. In such action, the judgment shall be rendered for the amount found due the plaintiff, and the court shall have power, by its decree or judgment, to direct a sale of the encumbered property, or such part thereof as shall be necessary, and apply the proceeds of the sale to the payment of the costs and expenses of the sale, the costs of the suit, and the amount due to the plaintiff." the parties is that it was an executory contract, reserving to the vendor not only the privilege, in case of nonpayment, to foreclose all the rights of the vendees, but, at the option of the vendor, to collect the unpaid portion of the purchase money by personal action against the vendees. Nor are we able to discern any good reason for a rule which would assume to change the relationship thus created by the agreement into one of The principle that a mortgage on real property in this state is not an alienation, but rather a security for debt, has been estab-mortgagor and mortgagee solely because the lished by decisions of this court. Hyman v. Kelly, 1 Nev. 179; National Bank v. Kreig, 21 Nev. 404, 32 Pac. 641; Orr v. Ulyatt, 23 Nev. 134, 43 Pac. 916. By these decisions it has been established that a mortgage of real property amounts merely to an equitable lien upon the property. vendee was, by the terms of the agreement, accorded the right to take possession. Why the mere taking possession of the property by the party who had, prior to the making of the agreement, never had possession, should transform the relationship existing between the parties to one of mortgagor and mortgagee, we are unable to discern. The vendee in this instance entered into an agreement with the vendor upon terms, the latter to sell, the former to buy, the premises described. The vendor never parted with title. It was only subject to the agreement, and during the continuance thereof, that the vendee acquired the right to take possession of or to use or occupy the property. these conditions established the relationship To say that of mortgagor and mortgagee between the parties who by their own act created the conditions, and at the same time to hold that an equitable lien only, and not the legal title, is by law vested in the mortgagee, would be to create an anomaly. It is the contention of respondents, and this contention was affirmed by the finding of the trial court, that, inasmuch as the agreement provided that the title should remain in the vendor, and that possession should be enjoyed by the vendee, these provisions were sufficient to establish the relationship of mortgagor and mortgagee. If we apply to this reasoning the decisions of this court in the cases of National Bank v. Kreig and Orr v. Ulyatt, supra, it follows that, inasmuch as it is the established law of this state that a mortgage is not an alienation, but merely a security for debt in the form of an equitable lien, then, the vendor in this instance retaining, as it did, the title to the property and never parting with the same, its Cases presenting conditions such as those position in the premises is something more established by the record here are to be disthan a mortgagee; and, as stated in Gessnertinguished from cases where a conveyance v. Palmateer, 89 Cal. 89, 24 Pac. 608, 26 Pac. has been actually executed, and a vendor's 789, 13 L. R. A. 187, the security held by the lien or other security reserved to insure the vendor is something stronger than a mort-unpaid portion of the purchase price. Casgage, because the legal title is retained as es such as the one at bar are to be distinsecurity, whereas in a mortgage the legal ti-guished from those involving contracts in tle is in the mortgagor; the mortgagee hold- which by their terms the obligation to puring only an equitable lien. chase is not assumed by the vendee. In the case of Longmaid v. Coulter, 123 Cal. 215, 55 Pac. 791, the Supreme Court of California, in a case analogous to the one at bar, referring to the Code of Civil Procedure of that state equal in force and effect to that found in our statute (section 5501), held that a vendor who had retained the title as security for the purchase money, or his assigns of the debt, might sue for and collect the unpaid purchase money in an action at law without, in the first instance, resorting to an action to enforce the lien for the debt. It further held that section 726 of the Code of Civil Procedure, corresponding to our stat [3] It is the contention of respondents that appellant cannot demand specific performance, because of the failure of appellant to make sufficient tender of conveyance. In appellant's amended complaint we find the following averment: "That the plaintiff has done and performed all things required by the terms and conditions of in said contract, been and is now ready, able, said contract, and has at all times, as provided and willing to convey said premises to defendants as agreed in said contract, upon the performance of the terms and conditions in said contract by defendant to be performed, and court." offers to deliver such conveyance into now |