Charter Gas Engine Co. v. Entrekin

• Decision Date: 17 June 1926
• Docket Number: Civil 2459
• Citation: 30 Ariz. 341,246 P. 1038
• Parties: CHARTER GAS ENGINE COMPANY, a Corporation, Appellant, v. J. L. ENTREKIN and MAGGIE B. ENTREKIN, His Wife, and F. W. McNAMARA and HELEN C. McNAMARA, His Wife, Appellees
• Court: Arizona Supreme Court

246 P. 1038

30 Ariz. 341

CHARTER GAS ENGINE COMPANY, a Corporation, Appellant, v. J. L. ENTREKIN and MAGGIE B. ENTREKIN, His Wife, and F. W. McNAMARA and HELEN C. McNAMARA, His Wife, Appellees

Civil No. 2459

Supreme Court of Arizona

June 17, 1926

APPEAL from a judgment of the Superior Court of the County of Maricopa. Richard Lamson, Judge.

Affirmed.

Mr. D V. Mulhern, for Appellant.

Messrs Silverthorn & Van Spanckeren, for Appellees.

Lockwood J. McAlister, C. J., and Ross, J., concur.

OPINION

Lockwood, J.

Charter Gas Engine Company, a corporation, hereinafter called plaintiff, brought suit against J. L. Entrekin and Maggie Entrekin, his wife, and F. W. McNamara and Helen C. McNamara, his wife, hereinafter called defendants, upon three promissory notes, and to foreclose an alleged mortgage which plaintiff claimed was given as security for the payment of such notes.

The undisputed facts are as follows: On November 12, 1919, defendants J. L. Entrekin and F. W. McNamara executed and delivered to plaintiff three promissory notes amounting to $ 11,000, secured by a certain realty mortgage on the southwest quarter of section 15, township 2 south, range 6 east, Gila and Salt River base and meridian, and a chattel mortgage on certain machinery located on another piece of land. On March 11th, 1922, no part of the principal or interest of said notes had been paid, and defendants entered into an agreement with plaintiff, through its attorney in fact, H. H. Horton which, so far as material to the determination of this case, reads as follows:

"Whereas, the said J. L. Entrekin and F. W McNamara were, on the 12th day of November, 1919, justly and truly indebted to the Charter Gas Engine Company of Sterling, Illinois, in the sum of eleven thousand dollars ($ 11,000.00) evidenced by three certain promissory notes bearing interest at the rate of eight per cent per annum until paid; . . .

"Whereas, it is the desire of the said J. L. Entrekin and Maggie B. Entrekin, husband and wife, and F. W. McNamara and Helen C. McNamara, husband and wife, and the Charter Gas Engine Company to make such disposition of said indebtedness as will save for all parties concerned such moneys and expenditures as would otherwise be necessary to be expended should a foreclosure of said mortgage be had:

"Now, therefore, the said J. L. Entrekin and Maggie B. Entrekin, husband and wife, and F. W. McNamara and Helen C. McNamara, husband and wife, all for convenience hereinafter called the parties of the first part, for and in consideration of the forbearance on the part of the said Charter Gas Engine Company to institute suit on its said notes, evidencing the amount of money now past due and owing for the collection thereof, as in said mortgage provided, hereby agree with H. H. Horton, the agent of the said Charter Gas Engine Company, hereinafter called the party of the second part, as follows:

"The parties of the first part hereby agree to make and execute their warranty deed to the southwest quarter (S. W. 1/4) of section fifteen (15), in township two (2) south of range six (6) east of the Gila and Salt river base and meridian, in Maricopa county, in the state of Arizona, and to deliver the same to H. H. Horton, the party of the second part herein, at the time of the execution of this agreement, provided, however, and the said delivery of said deed is made upon the following conditions and agreements, to wit:

"The parties of the first part hereby agree to and do deliver herewith said warranty deed to the premises hereinabove described to the party of the second part as and for an indenture in trust to and until the 15th day of December 1922, and that if the amount of the indebtedness hereinabove mentioned and referred to as being the amount of the notes owned by said Charter Gas Engine Company, shall be paid by said parties herein to said second party, together with the interest thereon and any proper charges for the expense incident thereto and in the drawing of these papers, that then and in that event said premises and property described in said deed and herein shall be reconveyed to said first parties, and said deed heretofore made and delivered shall from thence forward be held to be void and of no effect, and the party of the second part, in consideration of the execution and delivery to him of said deed for the purposes mentioned, agrees that in case of such payment of such indebtedness, together with the interest thereon and all proper charges, that he will immediately, by proper indenture of conveyance, reconvey said premises to said first parties, or...