40 ·· ranssn. asrosrnn.
growing out of this loan to Shaw," whois now "the owner and holder
thereof," of which the defendant had notice; that in 1882 the plain-
· tiff requested the defendant "to foreclose said mortgage," and in the
course of the proceeding therefor it was ascertained and determined
by the decree of this court that the same was subject to a prior mort-
gage on the premises, so that the whole amount realized by the plain-
tiff on said loan was $938.25; and that said Shaw is insolvent. The
second cause of action, as appears from the original complaint, is
upon a certificate given by the defendant to the Oregon & Washing-
ton Savings Bank, another British corporation engaged in leaning
money in Oregon on note and mortgage, as to the title of property
taken by said corporation, as a security for a loan of $300 made to
IH. H. Howard on November 27, 1876, on his promissory note payable
on December 1, 1877, with interest at the rate of 12 per centum per
annum, to the effect that said Howard was the owner in fee of the
same, and that it was unincumbered; that in 1883 said corporation
’ “found out" that said property was not owned by said Howard, so
that the whole amount of said loan was lost; that Howard is in-
solvent, and the plaintiff is now "the assignee" and "owner" of all
the "assets" of said corporation. The defendant demurs to both
· these statements, for that they do not contain facts suhicient to con-
stitute a cause of action.
In the urst statement it is alleged that the loss arising from the
insuiliciency of the security for the loan was sustained by the Oregon
_ & Washington Trust Investment Company, and that the defend-
ant now owes to said corporation the full amount thereof, to-wit,
$4,794.35; and it is also alleged that the plaintiff is now “the owner
and holder" of the mortgage, notwithstanding it appears that the same
has been "foreclosed" and merged in a decree of this court and partly
satisfied from the proceeds of the mortgaged premises; and notwith-
standing the further allegation that the defendant "now owes" the
amount of this loss to the Oregon & Washington Trust Investment
Company. But none of these contradictory allegations are admitted V
by the demurrer, except such as the law adjudges to be true, (Freeman
v. Fmnlc, 10 Abb. Pr. 370,) and those which are mere conclusions of
law and not thereby admitted at all. Bmnham v. The Mayor, etc., 24
Cal. 602; Hall v. Bartlett, 9 Barb. 297. This action is brought upon
the hypothesis that the defendant is now liable to the plaintiff for this
loss, but the allegation that he "now 0wes" the amount thereof to the
Oregon & Washington Trust Investment Company is utterly at vari-
ance therewith. He cannot be liable onthis account to both of them
at the same time.
Again, it is alleged that the defendant "guarantied" that the Shaw
property was clear of incumbrance. But this is a mere conclusion of
law, and the facts stated do not support it. Upon these, the trans-
action is simply an employment of the defendant by the Oregon &
Washington Trust Investment Company to examine and report upon