Foster

This action was brought by Nathaniel C. Foster against the personal representative and the heirs at law of Andrew 0. Butler, deceased, to quiet plaintiff’s title to a tract of land in San Diego County. The heirs answered, asserting an interest under a mortgage executed by Charles G. Wheeler, Foster’s predecessor in interest, to Andrew 0. Butler. The administrator with the will annexed of Butler’s estate answered, denying plaintiff’s title.

The court gave judgment in favor of plaintiff. The defendant heirs moved for a new trial, which was denied, and they now appeal from the order denying their said motion.

The cause was presented upon an agreed statement of facts. Upon this statement the court below found that the mortgage from Wheeler to Butler did not constitute a lien upon the premises, for the reason that the mortgage and the note secured by it were barred by limitation. The principal question raised by this appeal is whether this finding properly resulted from the stipulated facts which are as follows:

Andrew 0. Butler died at Chicago on the fifteenth day of January, 1902, leaving a will, which was admitted to probate by the superior court of San Diego County on July 1,…