Brackett

This is an action to foreclose a mortgage. Plaintiff had a decree. Defendants appeal from the judgment and from an order denying their motion for a new trial. The prominent facts are as follows:

On the 5th of January, 1891, plaintiff brought an action in the superior court in and for the county of San Diego, to foreclose a mortgage executed by the defendant, Manuel Banegas, to secure the payment of a prom *282 issory note made by him, the said Banegas, for seventeen hundred dollars.

Before bringing such action, plaintiff, as was the general practice, applied to an abstract company for a search of the records, and received a report that the only encumbrances on the mortgaged property, other than plaintiff’s mortgage, was a judgment lien in favor of one J. M. Lucas. There was, in fact, at the time of such search of record, a declaration of homestead made by defendant, Manuel Banegas (who was a married man, and resided with his family on the premises), upon the 'mortgaged premises. This was not discovered by the abstract company, and plaintiff, having no knowledge thereof, made Manuel Banegas and J. M. Lucas parties defendant in said action, and did not make Nievas Banegas, who is…