Hearn

— On the authority of the cases cited, it seems to be settled that the plaintiff can *58 not foreclose her mortgage, but the facts alleged seem to he sufficient to entitle her to a personal judgment for the amount of the note. If so, the complaint was good against a general demurrer for want of facts.

Appeal from a judgment. The only question to be considered here is, Was the demurrer to the complaint properly sustained ?

The complaint alleges that, in 1875, the defendant Mary E. Kennedy and one Michael Kennedy were husband and wife; that in 1875 they filed a declaration of homestead upon certain lots in Red Bluff, California; the homestead was a valid one; that Michael Kennedy died in 1886, and the defendant Mary E. Kennedy was appointed the administratrix of his estate; that on the thirteenth day of February, 1888, the superior court of Tehama County, on the petition of the said Mary E. Kennedy, made an order setting aside the lots above referred to, as a homestead, to the defendant Mary E. Kennedy; that on the twelfth day of October, 1882, said Mary E. Kennedy and her husband, Michael Kennedy, executed a joint and several note to the plaintiff for five hundred dollars, due five years after date, bearing interest at rate of ten per cent per annum; that to secure this note the defendant Mary E. Kennedy and her husband, Michael Kennedy, executed and delivered to the plaintiff a mortgage covering the lots above described.

The complaint does not allege that the claim of…