Newhall

The appellant brought suit against A. T. Hatch and others on the third day of February, 1897, to foreclose a deed intended as a mortgage, and joined the respondent as a defendant, because, as stated in the complaint, “The said Sherman, Clay & Co. claim some interest or lien upon the lands and premises hereinbefore described; but that said claim is subsequent to and subordinate to the mortgage aforesaid.” Respondent demurred on the grounds, among others, that the complaint failed to state a cause of action, and that the cause of action therein stated was barred by the provisions of section 337 of the Code of Civil Procedure. This demurrer was sustained, plaintiff declined to amend and appealed from the judgment against him. The defeasance which was executed with the deed is set out in the complaint, and after reciting the deed and the property conveyed thereby, said defeasance reads as follows:

The complaint shows that the suit was begun more than four years after the execution of the deed and defeasance upon which the suit is based. There appears to be no promise in writing subscribed by the defendant as to the payment of the amount loaned, and, though his obligation to pay may…