Consolidated Nat. Bank of Tucson v. Van Slyke

• Decision Date: 27 March 1925
• Docket Number: Civil 2194
• Citation: 27 Ariz. 501,234 P. 553
• Parties: CONSOLIDATED NATIONAL BANK OF TUCSON, a Corporation, EAGLE MILLING COMPANY, a Corporation, LEO GOLDSCHMIDT and ALBERT STEINFELD & CO., a Corporation, Appellants, v. VADER H. VAN SLYKE, Appellee
• Court: Arizona Supreme Court

234 P. 553

27 Ariz. 501

CONSOLIDATED NATIONAL BANK OF TUCSON, a Corporation, EAGLE MILLING COMPANY, a Corporation, LEO GOLDSCHMIDT and ALBERT STEINFELD & CO., a Corporation, Appellants, v. VADER H. VAN SLYKE, Appellee

Civil No. 2194

Supreme Court of Arizona

March 27, 1925

APPEAL from a judgment of the Superior Court of the County of Pinal. O. J. Baughn, Judge. Affirmed.

Messrs Kingan, Campbell & Connor and Mr. F. M. Hartman, for Appellants.

Messrs Chalmers, Stahl, Fennemore and Longan and Mr. Luther P Spalding, for Appellee.

OPINION

LOCKWOOD, J.

On February 16, 1912, one Roy Sibley executed a mortgage on certain unpatented mining claims in Pinal county to secure the payment of four notes, due, respectively, June 15, 1912 September 1, 1912, December 15, 1912, and February 14, 1913 in favor of A. Kegal and E. C. Taylor. On the same date he deeded the claims to Calumet & Copper Creek Mining Company, a corporation. On November 16, 1914, a judgment against the corporation was obtained and docketed by Leo Goldschmidt, which was afterwards assigned to the Consolidated National Bank of Tucson, one of the defendants herein. On November 4, 1914, Albert Steinfeld & Co. obtained a judgment against the corporation which was docketed November 6th, and on November 25th of the same year the Eagle Milling Company also obtained a judgment against the corporation, which was duly docketed December 3d.

On June 2, 1915, the Calumet & Copper Creek Company was adjudicated a bankrupt and on September 24th of the same year the trustees in bankruptcy deeded the property to S. H. Hudson, subject expressly to the lien of the judgments referred to, and the mortgage aforesaid. October 28, 1915, Hudson conveyed the property to the Copper State Mining Company, a corporation, subject to all the liens thereon.

On August 18, 1919, an execution was issued on the Goldschmidt judgment and the property sold to him October 25th, a sheriff's certificate of sale duly issued, and by him assigned to the Consolidated National Bank. September 30, 1919, an execution was issued on the Steinfeld judgment, the property sold October 25th, and the sheriff's certificate of sale issued to Steinfeld & Co.

The first not, secured by the mortgage aforesaid, was duly paid, but the others were not, and on February 3, 1913, the unpaid notes and mortgage were assigned to S. H. Hudson, for a valuable consideration. On July 1, 1914, Hudson assigned these notes and the mortgage to the Metropolitan National Bank of Minneapolis as collateral security on a loan. The bank reassigned them to him on August 14, 1916, and on January 3, 1920, he assigned them to the plaintiff herein, Van Slyke.

Suit was filed on April 23, 1920, by Van Slyke, to foreclose the mortgage; no judgment being sought on the note. On its face the mortgage was obviously barred by the statute of limitations, but plaintiff claimed the statute was tolled by certain written acknowledgments and promises to pay. The defendants raised the bar of the statute by demurrer and and also claimed the mortgage was merged with the title to the property, by reason of the alleged fact that Hudson, in purchasing both mortgage and title, did so solely as the agent and for the use and benefit of the Copper State Mining Company, or its predecessor in interest. The case was tried before Honorable O. J. BAUGHN, Judge of the superior court of Pinal county, sitting without a jury. On December 27, 1922, he rendered judgment in favor of the plaintiff and at the same time filed findings of fact and conclusions of law. On January 12, 1923, the defendants filed objections to the findings and asked for a modification thereof; but as Judge BAUGHN had retired from office January 1, 1923, no action was taken thereon. May 25, 1923, an appeal from the aforesaid judgment was taken by the Consolidated National Bank, Leo Goldschmidt, Eagle Milling Company, and Albert Steinfeld and Company, whom we will hereinafter call the defendants.

There are some fifteen assignments of error, but they raise substantially only two points: First, was there a merger of the mortgage and of the legal title to the property, in the Copper State Mining Company; second, did the evidence show a legal waiver of the statute of limitations as against the defendants' interests?

We are, of course, bound by the findings of fact of the trial court if there be any reasonable evidence to sustain them. Blackford v. Neaves, 23 Ariz. 501, 205 P. 587. Since it found that it was not the intention of Hudson that there should be a merger, and since during the time in which he held the legal title the mortgage had been assigned to the Metropolitan National Bank, there was no merger of the title. Woodhurst v. Cramer, 29 Wash. 40, 69 P. 501; Shattuck et al. v. Belknap S. B., 63 Kan. 443, 65 P. 643; 27 Cyc. 1379. We must therefore take up the second question.

The mortgage was admittedly barred on its face by the statute of limitations, but plaintiff relies on three letters which were offered in evidence, dated January 11, 1916, August 29, 1916, and December 18, 1917, as constituting such waiver. Without setting up the substance of these letters, we may state that we are of the opinion any one of them is sufficient in its language to satisfy the provisions of paragraph 726, Revised Statutes of Arizona of 1913. Wooster v. Scorse, 16 Ariz. 11, 140 P. 819. Nor is this seriously questioned by defendants. They object, however, to the sufficiency of the letters on two grounds: First, that they were not signed "by the party to be charged," defendants claiming that this party was the maker of the notes and mortgage, Roy Sibley; and, second, that admitting the Copper State Mining Company was the party to be charged, the letters were not signed by any person authorized so to act as to bind the company.

Answering the first proposition, it will be observed this action is not for a personal judgment on the notes as against the maker, but for the foreclosure of the lien of a mortgage. The effort is to charge the real estate alone with the debt, and, under such circumstances, the present owner of the title is certainly the one who is required to sign the acknowledgment. Foster v. Bowles et al., 138 Cal. 346, 71 P. 494, 649; Cotcher v. Barton, 49 Cal.App. 251, 193 P. 169.

Two of the letters in question were signed, "Copper State Mining Company, by Martin E. Tew, President," and the other was signed, "Martin E. Tew." It is contended that the president of a corporation, and especially one like this, has no power or authority...