Toplitz

This is an appeal upon the judgment-roll alone from a judgment entered in favor of the defendant in an action of unlawful detainer. All of the material allegations of the plaintiffs’ complaint were admitted by the failure of the defendant’s answer to deny them. The defendant, however, as a defense to the action pleaded the existence of a mortgage executed by the defendant to the plaintiffs as security for the rent reserved in the lease under which the defendant held and occupied the premises in controversy.

The court below, in substantial accord with the admitted allegations of the complaint, made its findings of fact in favor of the plaintiffs in so far as concerned the execution of the lease and the breach of the covenant to pay the rent reserved; but further found that a mortgage given as security for the payment of the rent had not been resorted to and exhausted by the plaintiffs prior to the institution of the present action; and from the latter finding deduced the conclusion of law “that by reason of the provisions of section 726 of the Code of Civil Procedure of the state of California the action is barred and cannot be maintained.”

The code section referred to provides…