Goldwater

This is an appeal by defendant from a judgment rendered in favor of plaintiff, after an order overruling defendant's demurrer to plaintiff's amended complaint and sustaining plaintiff's demurrers to defendant's answer and cross-complaint. Plaintiff by his complaint sought a decree restraining defendant from the threatened sale of land of plaintiff under a power of sale, contained in a mortgage, executed by the predecessor in interest of plaintiff, one Julia Hinz, upon her homestead, to secure the sum of $3,000 and interest. As appears from the complaint, Julia Hinz had deceased before the attempted execution of the power, and the debt and note had also become barred by the statute of limitations, which bar is pleaded and set up both in the complaint and in the demurrer to defendant's answer and cross-complaint. The debt, as appears from the pleadings, has never been paid. The answer and cross-complaint set up the facts in greater detail than in the complaint, but it is perfectly clear from each and all of the pleadings that the mortgagor had deceased long before the attempted execution of the power, and that, likewise, any action upon the debt, note and mortgage had become barred…

We deem the opinion of the district court of appeal herein correct, regardless of the question whether a power of sale included in a mortgage is or is not technically a lien on the land. At the time the defendant attempted to execute the power, the debt, note and mortgage had become barred and the mortgagor was deceased. The lien of the mortgage was, therefore, extinguished, and the mortgagee, as holder of the power, was without any interest whatever in the land, as lienholder or at all. Consequently, on well-settled principles, *Page 518 the interest once coupled with it had then ceased to exist, it had become a naked power, and the mortgagor who made it being dead, the power had terminated with the extinction of the interest. The petition for a hearing in the supreme court is denied.