Filipini

This is an appeal by Mary Trobock from an order denying her motion for a new trial. The order was affirmed by Department, upon the following statement and opinion: —

After the decision in Department affirming the order of the superior court upon the grounds stated in the foregoing opinion, a rehearing was granted, because it was thought that the doctrine announced in Wood v. Goodfellow, 43 Cal. 185 , was infringed by that part of the opinion in which it was held that the plea of the statute of limitations was disposed of adversely to the appellant by the specific facts found by the superior court and stated in the opinion. The case having been resubmitted to the court in Bank, we are now to consider whether, upon the facts as found, the statute of limitations was a bar to the action against Mary Trobock.

There can be no doubt that she is estopped to deny that Antonio Trobock was the owner of the land at the date of the mortgage, and that her title is subject to the mortgage; but we think there can be as little doubt that after she had recorded the deed from Antonio to her deceased husband, her position as successor to her husband became, and continued to be, no better and no…

I am not able to concur. In my judgment, the order denying the new trial should be affirmed, upon the opinion delivered in Department. I do not think that the old deed from Antonio to Nicolas can be considered at all; the appellant is estopped from setting up any claim under it. The representation that Antonio owned the property at the date of the mortgage — upon which representation respondent loaned its money and took his mortgage as security—forever estopped Nicolas and his privy, the appellant, from asserting that Antonio had prior to that time conveyed the property to Nicolas. The recording of the prior deed to Nicolas, many years after its execution, gave it no life as against the estoppel; and I see no ground for holding that it was, by its recordation, legally transmuted into a new deed. It was not in fact a new deed; it always was, and is now, the identical deed which appellant is estopped from asserting. Whether or not Nicolas or appellant could have procured another deed from Antonio after the mortgage does not appear; the fact is, that he did not make such a deed, and appellant is compelled to rely on the old one, in the face of the said representation made at the time…