application for a hearing in this court after decision by the district court of appeal of the first appellate district, division one.
The opinion of the lower court discusses the recordability of the notice by the defendant Pendergrast. In this portion of the opinion we are not ready to concur without further consideration. It is immaterial, however, whether it was recordable or not. In any event the contract of repurchase between the defendant Waldteufel and Mrs. Pendergrast, if the latter chose to avail herself of it, would have been a good defense to an action by Waldteufel to foreclose the mortgage. Being a good defense against him, it would be a good defense against his assignee, the plaintiff, since the mortgage note was not negotiable under the law of this state at the time of the transactions here involved. The result, so far as the defendant Pendergrast is concerned, is that upon the facts found by the lower court the plaintiff is entitled to a judgment against her *111foreclosing any interest of hers in the mortgaged property, but not to a deficiency judgment. As to the defendant Waldteufel, he warranted to the plaintiff the validity of the mortgage against the defense interposed in this case (Civ. Code, see. 1774), and is estopped from making such defense.
The application for a hearing is denied.
All the Justices concurred.