McMillan

Defendants appeal from the judgment against them within sixty days; and the point made here is, that the finding to the effect that the cause of action was not barred by the statute of limitations is not sustained by the evidence, and is contrary to the other findings of fact.

It appears that, May 8, 1873, Frank Scherf executed a note secured by mortgage, which became due one year from the date thereof; that the mortgagor died testate, November 15, 1875, and January 11, 1876, his widow was appointed executrix and duly qualified. March 5, 1878, she married again, and her letters testamentary were revoked July 15, 1887. No notice to creditors was published by her.

Hayward was appointed administrator with the will annexed, September 6, 1887, and this suit was commenced September 14, 1887, against the administrator and the minor children of Scherf, his devisees, to foreclose the mortgage. No claim was ever presented against the estate for the amount due on the note and mortgage, and in the complaint all recourse against other property of the estate is expressly waived.

The defense is the bar of the statute of limitations (Code Civ. Proc., sec. 337), which we think is fully…