Stephens

This is an action to foreclose a mortgage. The .promissory note to secure which the mortgage was given became due July 13, 1900, and would he barred by lapse of time July 13, 1904. The complaint was filed October 14, 1907. Defendant demurred to the complaint on the ground that the action was barred by the statute of limitations; the demurrer was sustained and defendant had judgment accordingly. The appeal is from this judgment.

The contention of appellant is that defendant acknowledged the indebtedness in writing before the statute had run, and hence the court erred in sustaining the demurrer. The complaint alleged that no part of the principal or interest of the note had been paid except interest to October 13, 1899. Paragraph XI of the complaint is as follows:

“That subsequent to the first day of March, 1904, and prior to the thirteenth day of July, 1904, to wit, on or about the first day of April, 1904, said defendant C. S. Stephens voluntarily rendered and delivered to the assessor of the said county of San Joaquin the statement required by the provisions of section 3629 of the Political Code of the state-of California, for the purpose of assessment of property owned by him…