Roper

This is an appeal hy plaintiff from a judgment entered upon an order sustaining a demurrer to the.complaint in an action to foreclose a mortgage on real property, the plaintiff being the owner by assignment of the obligation secured by said mortgage. The demurrer was sustained upon the theory that the action was barred by the statute of limitations. The institution of the suit was about four and one-half years after the maturity of the note, and was, consequently, barred unless, as the plaintiff contends, the defendants were estopped to set up the defense of the statute, or unless there was an acknowledgment in writing by the defendants of the indebtedness.

The complaint alleges that in February, 1907, Mrs. Fidelia Winton by an escrow deed conveyed the real property concerned to Charlotte Delia Smith and Dean Kingsley Smith, two of the defendants in the action, who at that time were minors. Subsequently, in April, 1908, said Fidelia Winton, notwithstanding said deed in escrow, conveyed the property to John W. Winton, her husband, and this deed of conveyance was recorded in April, 1912. In April, 1914, Fidelia Winton died, whereupon the escrow deed to said defendants was placed…