60 Cal. 651 | Cal. | 1882
We are of opinion that the judgment of the Court below is erroneous. The record shows that the instrument in question, though in form a deed absolute, was nevertheless executed to the defendant McClain as security for certain indebtedness of the plaintiffs assumed by him. It was therefore in legal effect a mortgage. The defendant paid the amount, and thereupon plaintiffs became indebted, to him in the amount so paid. This indebtedness, for the security of which the instrument in question was given, arose and became due more than four years before the commencement of the action. When it became due, plaintiffs and defendant enjoyed reciprocal rights— plaintiffs the right to redeem the property given as security, and the defendant the right to demand the debt. (Gratton v. Wiggins, 23 Cal. 16; Cunningham v. Hawkins, 24 id. 403; and other cases in this Court.)
More than four years having elapsed from the maturity of the debt, defendant’s cause of action therefore became subject to a plea of the Statute of Limitations, as did also the plaintiffs’ right to redeem..
Viewed in the most favorable light for the plaintiffs, the action is one to redeem, to which the defendant pleaded, among other defenses, the Statute of Limitations. This defense must be sustained, regardless of other points made.
Judgment and order reversed and cause remanded for a new trial.
McKinstry, McKee, and Sharpstein, JJ., concurred.
