Thornton

Upon a former appeal in this case (Hibernia etc. Soc. v. Thornton, 109 Cal. 427 ; 50 Am. St. Rep. 52 ), a judgment in favor of the plaintiff for the amount of the promissory note sued on was reversed. After this reversal the cause was again tried upon the issues presented by the original pleadings *63 and a supplemental answer setting forth the death of the former defendant, and the appointment of the appellant as his executor; and the court rendered judgment in favor of the plaintiff for the foreclosure of a mortgage, and directing a sale of the property therein described, from which the defendant has appealed. By the complaint herein the plaintiff seeks merely to recover the amount of the promissory note set forth therein, and the appellant contends that a judgment of foreclosure was not authorized.

The rule is firmly established in this state that an action cannot be maintained upon a promissory note secured by a mortgage, independent of an action to foreclose the mortgage. The respondent does not dispute this proposition, but seeks to uphold the judgment by reason of certain averments in the answer. It is alleged in the answer that the note sued upon was given in renewal of…