It is insisted that the decision is opposed to Cunningham v. Hawkins, 24 Cal. 406, so far as the defense of the Statute of Limitations is concerned. It was held in that case that the mortgagor, after the lapse of four years, lost the right to pay or tender the mortgage debt in exoneration of the land mortgaged. But it' does not follow from that, that a mortgagee loses either the power or right to accept payment of the debt after the statute has run upon it; and should he do so, then, the debt being extinguished by the payment, the land would be disencumbered by the direct force of the fact, a'nd no bill to redeem would be either necessary or possible. In this case it may be admitted that Hathaway could not have compelled a repayment of the borrowed money after the four years had run, and that after that, date the plaintiff had no power to make an effective tender. But the defendant was at liberty to accept payment in full, and having chosen to do so, he cannot relieve himself of liability to execute the trust according to its terms, on the ground that he might have refused to take the money. By force of the stipulation of August 25, 1855, no action could accrue to the plaintiff to compel a conveyance until the whole of the borrowed money had been repaid. After the lapse of four years it rested with Hathaway to say whether that event should ever happen or not. By his own voluntary action he allowed it to happen, and then, for the first time, Millard was clothed with a right of action against him. This is an answer to the objection that Hathaway never promised in writing to execute the trust. No written renewal is necessary to save a claim from the bar of the statute, in case the statute has not run upon it at the time when an action is brought to enforce it.
We have not overlooked the point made for the appellant, *147that C. W. Hathaway by conveying tó E. Y. Hathaway “ asserted a right in himself adverse to his cestui que trust, and that the latter came in as a stranger asserting a right in himself, also adverse in its character.” The proposition was fully considered, and was replied to, not directly, to be sure, but by advancing another proposition presenting the law of the facts stated as understood by us. In the pressure of business we often find it necessary to meet views presented by counsel by giving a direct exposition of our own.
By the expression “ that the tendency of the evidence was that the possession of the land had been in Millard or his tenants since 1855,” we would be understood to mean that there was evidence in the case tending to prove the fact, and that we could not readjudge the question upon the testimony. But we do not consider that it is a matter of any moment whether E. Y. Hathaway was or was not in possession after the conveyance of the land and the assignment of the debt to him, for there is no plea that E. Y. Hathaway had been in adverse possession of the land for five years.
It is urged that “ a parol discharge of a written contract is available in equity to repel a claim upon that contract.” We have not time to enter upon a critical examination of the authorities bearing upon that question; nor do we consider it at all material to do so. In the first place, we are not dealing with a contract “ within the Statute of Frauds,” but with a trust confessedly without it; and, in the second place, our statute expressly provides, that the trusts to which it belongs can be surrendered only by act and operation of law, or by deed signed by the party, or by his agent thereunto duly authorized in writing. This provision, in our judgment, settles the question.
The Court below has found directly, that the borrowed money had all been repaid with interest at the rate of three per cent per month, as stipulated in the contract of loan. There was a conflict of evidence upon the point, and we are satisfied with the result at which the Court arrived; and if we were not entirely satisfied with it, we could not, as the bar is *148fully advised, readjudge the question upon the testimony. In a large proportion of the cases that come to this Court, we are invited and urged to reverse judgments on the ground that the conclusions of fact arrived at aré not justified by the evidence; but under the settled practice of this Court, such attempts must always prove abortive, except in extreme cases.
In the opinion delivered, we said nothing about the newly discovered evidence as a ground of new trial, for the reason that the counsel of the appellants made no allusion to it in either of their briefs. In the first place, it is admitted in both answers, in effect, that the eight thousand five hundred dollars and interest was paid and received on account of the land contract; and assuming that to have been the fact, we do not consider the general business relations of the two Millards to have been a material question. And in the second place, the evidence alleged to be newly discovered, is merely cumulative, and does not fall within any of the exceptions to the general rule prohibiting the granting of new trials on the ground of newly discovered evidence of that character.
Rehearing denied.