Hill

From a judgment in favor of the plaintiff, foreclosing a mortgage, the defendant, Klein, appeals.

The complaint sets forth the execution and contents of the mortgage and of the notes the payment of which is secured thereby, and prays for judgment of foreclosure, in the ordinary form. It further alleges, on information and belief, that the defendant, Luther M. Hill, never resided in the state of California. The mortgage and notes were executed by Hill to O. J. Stough, who assigned them to plaintiff. John P. Klein subsequently became the owner of the land described in the mortgage. It is alleged in the complaint that neither of the subsequent holders of the title under Hill have ever resided within the state of California since the execution of the mortgage.

The answer of Klein denied the execution of the mortgage and notes sued on and the assignment thereof to plaintiff. It also denied the allegation that Hill had never resided in the state of California. As an affirmative defense it attempted to aver that the action was barred by the statute of limitations. It did not set forth this defense as provided in the code, by averring that the action was barred by the particular section…