McCaughey

After a careful examination of the points involved in this appeal we are satisfied with the opinion and judgment rendered in Department. For the reasons given in the Department opinion the judgment and order appealed from are reversed, and the court is directed to sustain the demurrer to plaintiff’s complaint, with leave to plaintiff to amend.

The following is the opinion rendered in Department One, October 22, 1896:

This is an action to recover possession from the defendants, who are appellants here, of lots A, B, 0, J, K, and L, in block 131 of Horton’s addition *224 to Sau Diego, county of San Diego, state of California.

Plaintiff had judgment, from which judgment and from an order denying their motion for a new trial defendants appeal.

The complaint was demurred to upon the ground, among others, that it does not state facts sufficient to constitute a cause of action. We think the demurrer should have been sustained.

The complaint may be summarized thus: 1. December 22, 1891, defendants made their promissory note to plaintiff for two thousand dollars, and, to secure the payment thereof, executed a mortgage upon the lots of land sought to be recovered in this action; 2.…