Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.

This was an action, commenced May 26th, 1865, to foreclose a mortgage, executed and delivered November 25th, 1854, by defendant Edward S. Rowe, to plaintiff, of certain real property in the City and County of San Francisco, to secure the payment of the certain promissory note, according to its terms, which is recited in the opinion of this Court.

The complaint alleged that two hundred dollars of the principal of the note was paid November 18th, 1856, with the interest until then accrued on the note. That, at the request of defendant Edward S. Rowe, the rate of interest on the note was reduced to the rate of two per cent per month. That this was done August 25th, 1856, from which time the monthly interest was regularly paid by said Edward S. Rowe to September 25th, 1864, since which time payment had been refused of both principal and interest, although often demanded. That defendant Adelade A. Rowe had or claimed to have some interest in the mortgaged property, which was, however, subsequent and subordinate to the lien of plaintiff’s mortgage thereon.

The defendants demurred generally on the ground that the complaint did not state facts sufficient to constitute a cause of action, and specially, that it appeared on the face of the complaint that the cause of action therein declared on had been barred by the Statute of Limitations before the commencement of said action. The demurrer was sustained by the Court, and the plaintiff declining to amend his complaint, judgment final was rendered for the defendants. The plaintiff appealed.

Edward Tompkins, for Appellant, argued that the statute did not begin to run against the mortgage until the refusal of payment of interest on the note, which was September 25th, 1864. This argument was based on the language of the note, to wit: “ In case, the said interest, or any portion thereof, should become due and remain unpaid after demand, then the mortgage given by me, of even date herewith * * * may be foreclosed ,” etc.; also, that the mortgage, by its terms, was only to be foreclosed “ according to the provision in said note contained.” He further argued, that the fact of the note being barred by the statute in no way affected the right of action upon the mortgage; citing 2 Parson Cont. 379; Pars. Mer. L. 260; 1 Wash, on Real Property, 606 ; 1 Hil. on R. P. 433, Sec. 18; Bank of Metropolis v. Gullschlick, 14 Pet. 32; Barron v. Kennedy, 17 Cal. 577.

Elisha Cook, for Respondents, argued that the provisions of the note and mortgage, relied on by appellant, were designed, and only had the effect, of giving the mortgagee the right to foreclose at any time before the expiration of the six months, in case of default in paying interest as stipulated, after demand ; that the right of action on the mortgage did not survive the bar of the note by the statute; and cited Cunningham v. Hawkins, 24 Cal. 403.