Harrington

October 7, 1891, appellant purchased from the plaintiff certain premises in the city of Oakland, with a *543 dwelling-house thereon, for the sum of nine thousand dollars. A thousand dollars was paid in cash, and the purchaser assumed and agreed to pay and discharge the mortgage on said premises, previously executed by the plaintiff and her husband to the defendant bank, in the sum of three thousand five hundred dollars; and also executed a note and mortgage to the plaintiff in the sum of four thousand five hundred dollars, the balance of the purchase price.

The action is for the foreclosure of the mortgage executed to the plaintiff, and was commenced April 26, 1895. The defendant bank, by way of cross-complaint based upon its own and prior mortgage, also asked for foreclosure. The defendant Paterson filed his' amended answer and cross-complaint as against the plaintiff. The plaintiff demurred “to the cross-complaint and affirmative matter set forth in the amended answer and cross-complaint of the defendant, Edward M. Paterson,” on the ground, among others, that it did not state facts sufficient to constitute a cross-complaint or cause of action, nor entitle the defendant,…