Nieto

The plaintiff brought this action to foreclose a mortgage on certain real property situated in Kern County. A judgment and decree of foreclosure in the usual form was entered against both defendants. From this judgment the defendants prosecute this appeal.

Said mortgage was given to secure the payment of a promissory note for the sum of $750, dated November 26, 1921.

Appellants contend there was a valid declaration of homestead on said property and that the decree of foreclosure should have been made subject to said homestead.

The record reveals two complete answers to this contention.

First: The homestead is not pleaded in the answer as a special defense against the mortgage. In fact, it is not mentioned in the answer at all. The answer contains: .First, a general denial of the allegations of the complaint; second, the statute of limitations, and, third, want of consideration for the note and mortgage.

Section 437 of the Code of Civil Procedure, as it stood on December 20, 1926, when the answer in this case was filed, provided: “The answer .of defendant shall contain: (1) A general or specific denial of the material allegations of the complaint controverted by the defendant;…