It was alleged in the original complaint that the plaintiff’s devisor was the owner of a quarter-section of land, and conveyed the same by a deed absolute in form to George W. Gridley in 1866; that the deed was intended as a mortgage to secure the sum of one hundred dollars, and that the debt was fully paid in 1868; that Gridley promised to reconvey the property, but died without having done so, and that the deed is now a cloud upon the plaintiff’s title. The widow and children of Gridley were made parties defendant.
By leave of the court, the plaintiff filed an amended complaint, making the administratrix of the estate of Gridley also a defendant, and setting forth the facts *509constituting her cause of action somewhat more fully than they were set forth in the original complaint.
Among other things, it was alleged that the plaintiff’s devisor remained in the actual, open, notorious, uninterrupted, and exclusive possession of the land, claiming the same as his own, and adversely to every other right, from the time of the execution of the deed in 1866 until his death in 1883. And the prayer was that it be adjudged and decreed that the plaintiff was the owner of the property, and that the defendants had no right, title, or interest in or claim upon the same or any part thereof; that the deed to Gridley was intended to be a mortgage only, and was fully paid and satisfied during his life; that a commissioner be appointed to enter and indorse upon the record of the deed “that said instrument was intended as a mortgage, and had been fully paid and satisfied”; and that plaintiff’s title be quieted as against the defendants.
The defendants moved to strike out the amended complaint, upon the ground that the administratrix of the estate of Gridley was made a defendant without permission of the court having been obtained for that purpose; and upon the further ground that the nature of the action and the relief prayed for had been materially changed.
They also demurred to the complaint upon the ground that there was a misjoinder of parties defendant, and upon the further ground that two causes of action, one to quiet title, and the other to declare a deed a mortgage, were improperly, united, and not separately stated.
The court denied the motion to strike out, and overruled the demurrer, and these rulings are assigned as error.
We think the rulings were right. The administratrix was a proper party to the action, and the plaintiff, having obtained leave to amend generally, had a right to make her a party without any special permission to do so. The heirs at daw were proper, if not necessary, *510parties, and there was no misjoinder when all were brought in. The nature of the action was not materially changed. In both the original and amended complaints, the purpose was to remove a cloud cast upon the plaintiff’s title by the deed of 1866, which was alleged to have been intended only as a mortgage
Some probative facts were unnecessarily stated in the amended' complaint, but they served only, if established, to sustain the plaintiff’s contention. They did not constitute a separate cause of action, and the complaint was not subject to demurrer because two causes of action were improperly joined.
The defendants also insist that the evidence did not justify the decision. ' A sufficient answer to this is found in the fact that there was testimony tending strongly to support the decision, and the testimony the other way, at most, created only a conflict. In such a case, as is well settled, this .court never interferes with the judgment of the court below.
The defendants pleaded in bar of the action section 337 of the Code of Civil Procedure. That section provides that “an action upon any contract, obligation, or liability founded upon an instrument in writing, executed in this state, must be commenced within four years after the cause of action accrued. The court failed to find upon the issue presented by this plea, and this failure is assigned as error.
The action was not brought to enforce a contract, obligation, or liability founded upon an instrument in writing, and the issue sought to be presented was wholly irrelevant and immaterial. In Chipman v. Morrill, 20 Cal. 130, the court, by Field, C. J., said “that the statute-by the' language iii question refers to contracts, obligations, or liabilities resting in or growing out of written instruments, not remotely or ultimately, but immediately; that is, to such contracts, obligations, or liabilities' as arise from instruments of writing executed by the parties. *511who are sought to be charged, in favor of those who seek to enforce the contracts, obligations, or liabilities. The-construction would be the same if the word “founded” was omitted, and the statute read “upon any contract, obligation, or liability upon an instrument of writing.”
As the issue tendered was immaterial, a failure to find upon it was not an error. (Knowles v. Searle, 64 Cal. 377; McCourtney v. Fortune, 57 Cal. 617.)
The judgment and order should be affirmed.
Searls, C., and Foote, C., concurred.
The Court.For the reasons given in the foregoing opinion, the judgment and order are affirmed.