Prosser

This is an action to foreclose a chattel mortgage given to secure the promissory note of the defendant. The complaint was filed more than four years after the maturity of the note, and the superior court held, on demurrer, that the action was barred by the statute of limitations. The judgment of the superior court was reversed in Department on the ground that the note was taken out of the operation of the statute by a new promise or acknowledgment in writing (Code Civ. Proc., sec. 360), but at the same time it was held that the right to foreclose the mortgage was barred. As to this latter point only a rehearing was granted on petition of the appellant. Upon the first point we adopt the Department opinion as follows:

As to the second point, it was assumed in the Department opinion that the life of the original mortgage ended four years after the maturity of the note, and that the written acknowledgment of the debt, though sufficient to prevent the bar of the statute as to the personal obligation, was not such an instrument as is essential to create, renew or extend a mortgage. The contention of the appellant is, that this view ignores the effect of section 2911 of the Civil Code,…