Newhall

—The plaintiff loaned to the defendant Hatch the sum of fifty thousand dollars, November 10, 1891, for which Hatch, on that day, executed to him his promissory note, payable one day after its date. November 3, 1892, as security for the payment of four thousand dollars of said indebtedness, Hatch executed to the plaintiff a conveyance of certain lands in Alameda County, which was recorded in the office of the county recorder on the following day. This deed, though absolute in form, was intended as a mortgage, and on November 4, 1892, the plaintiff executed and delivered to Hatch a defeasance, which, after reciting the execution of the deed, and the property conveyed thereby, contained the following: “And whereas, said deed is absolute in form, yet in fact is intended as security for the payment of the sum of four thousand dollars loaned by said Newhall to said A. T. Hatch, now this defeasance witnesseth, That the said George A. New-hall, for himself, and for his heirs, executors, administrators, and assigns, hereby binds himself and agrees to reconvey the hereinabove mentioned and described property unto the said A. T. Hatch, his heirs, executors, administrators, and assigns, at…

—I am not able to agree with the conclusion reached by a majority of the court in this case. Waiving all other questions, I think that the judgment in the first action is a bar to the present action. “ Whether a former judgment will operate as a bar to an action depends upon the identity of the two causes of action and of the parties.” (Parnell v. Hahn, 61 Cal. 131 .) In the case at bar, the two actions were between the same parties, and upon the same identical cause of action,— namely, a promise to pay four thousand dollars, and a mortgage to secure it, made and executed in 1892. Respondent cannot claim that the cause of action is the new promise made in 1895; for, under that view, the mortgage would not cover it. (Southern Pacific Co. v. Prosser, 122 Cal. 413 ; Wells v. Harter, 56 Cal. 342 .) Whether or not a renewal of a debt secured by a mortgage does, in any case, extend the life of the mortgage, is a question about which there is some conflict in the authorities. It was held, however, in Southern Pacific Co. v. Prosser, 122 Cal. 413 , that when the promise is made after the statute of limitations has run, then it constitutes a new cause of action, which must be sued on, as…