Abbott

Defendant appeals from a judgment rendered in favor of plaintiff in an action brought to recover upon a promissory note.

As a special defense, the defendant by answer alleged that with the execution and delivery of the note and as security for the payment thereof, he and plaintiff’s assignor executed an agreement, copy of which is set out in the answer, which agreement “is in truth and in fact a mortgage on real estate and was given as security for the obligation sued upon in this action.” The agreement contained a clause as follows: “The payment of the said promissory note and moneys is hereby secured upon the interest of the party of the first part [defendant herein], in what is known as the Dreamland Pier Company at Ocean Park, and the property owned by him jointly with C. A. de Lisle-Holland and W. H. Labb, and also secured on all devices erected on or so to be, the said pier and property.”

The sole contention of appellant is that, in the absence of an affidavit filed by the plaintiff denying the execution of the instrument, its genuineness, as provided by section 448 of the Code of Civil Procedure, is deemed to be admitted, and since the instrument constituted a mortgage…