Allen

Appellant received from the state a certificate of purchase for the lands described in the complaint, on March 28, 1860, and in August following assigned the same to one Collins, to secure an indebtedness of thirty dollars, and thereafter a patent was issued from the state to Collins. Appellant paid Collins the amount due him; and the latter, by request of appellant, conveyed the land to John H. Allen, who paid no consideration therefor. Respondents thereafter advanced to the appellant certain sums of money for the payment of taxes which had become delinquent, and to secure the repayment to them of said sums, the appellant, on June 12, 1869, caused said John H. Allen to convey the lands to them as security for the repayment of the money they had advanced. This deed was absolute in *194 form. John H. Allen received no consideration for the deed. Neither of the parties has ever been in actual possession of the land. The contract of loan was oral, and no time was fixed in which appellant was to make repayment. Plaintiff never made any demand for an accounting, or any offer to redeem, prior to the year 1885, and defendants did not, prior to that time, assert any claim of title to the…

—According to the opinion of the court, the plaintiff’s action was barred by section 361 of the Code of Civil Procedure, because, and only because, an action by defendants to foreclose would have been barred by said section. I am not satisfied with the *201 reasoning by which the conclusion is reached, that the defendants were barred of their action to foreclose before this action was commenced; but conceding it to be correct, it does not follow, in my opinion, that the plaintiff’s right of action was thereby lost.

. That the right to redeem and the right to foreclose were barred at the same time was undoubtedly the law of this state prior to the codes; but since they were enacted, the right to redeem is unaffected by the extinguishment of the right to foreclose. (Code Civ. Proc., sec. 346; Civ. Code, sec. 2903; Raynor v. Drew, 72 Cal. 310 ; Booth v. Hoskins, 75 Cal. 271 ; De Cazara v. Orena, 80 Cal. 134 ; Hall v. Arnot, 80 Cal. 354 ; Warder v. Enslen, 73 Cal. 291 .) In other words, the codes have prescribed another rule for the limitation of actions to redeem from mortgages and other liens. By the old rule, the right to redeem was barred when the right to foreclose was barred;…