Williams v. Nieto

California Court of Appeal May 1, 1929 No. Docket No. 3767.Published

Before: Preston

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Holding. The court held that the defendants failed to plead the homestead defense, failed to provide evidence of a valid homestead, and admitted the execution of the mortgage by failing to deny it in their verified answer. Furthermore, the court held that a mortgage is valid between the parties regardless of the sufficiency of its acknowledgment.

Issues

Whether a homestead defense not pleaded in the answer can be considered on appeal.
Whether the evidence was sufficient to establish a valid declaration of homestead.
Whether the failure to deny the execution of a mortgage in a verified answer constitutes an admission of its due execution.
Whether a mortgage is valid between the parties despite a defective acknowledgment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A defense which is not pleaded cannot be considered, although shown by the evidence.”

“The burden rested entirely upon appellants to show, not only that there was a declaration of homestead and that same had been recorded, but also to show that the claimant was a resident upon the property”

“the genuineness and due execution of both the note and mortgage are admitted.”

PRESTON (H. L.), J.,

pro tem.

The plaintiff brought this action to foreclose a mortgage on certain real property situated in Kern County. A judgment and decree of foreclosure in the usual form was entered against both defendants. From this judgment the defendants prosecute this appeal.

Said mortgage was given to secure the payment of a promissory note for the sum of $750, dated November 26, 1921.

Appellants contend there was a valid declaration of homestead on said property and that the decree of foreclosure should have been made subject to said homestead.

The record reveals two complete answers to this contention.

First: The homestead is not pleaded in the answer as a special defense against the mortgage. In fact, it is not mentioned in the answer at all. The answer contains: .First, a general denial of the allegations of the complaint; second, the statute of limitations, and, third, want of consideration for the note and mortgage.

Section 437 of the Code of Civil Procedure, as it stood on December 20, 1926, when the answer in this case was filed, provided: “The answer .of defendant shall contain: (1) A general or specific denial of the material allegations of the complaint controverted by the defendant; (2) A statement of any new matter constituting a defense or counterclaim.”

“If the complaint be verified, the denial of each allegation controverted must be specific, and be made positively, or

[617]

according to the information and belief of the defendant ....

“If the complaint be not verified, a general denial is sufficient, but only puts in issue the material allegations of the complaint.”

The complaint in the case at bar is verified.

Doll

Good,

Williams v. Nieto

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PRESTON (H. L.), J.,

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