Holman v. Roberts
| Decision Date | 25 February 1929 |
| Docket Number | Civil 2720 |
| Citation | 274 P. 775,35 Ariz. 110 |
| Parties | S. N. HOLMAN and MIRTRUE HOLMAN, Appellants, v. C. M. ROBERTS, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Graham. C. C. Faires, Judge. Affirmed.
Mr. T E. Allyn, for Appellants.
Messrs Ellinwood & Ross, Mr. James S. Casey, and Mr. Wm. H. MacKay for Appellee.
Appellee Roberts, as assignee, commenced this action against the appellants, the makers, to collect four promissory notes and to foreclose the mortgages given to secure notes, and pleaded his demands in four separate causes of action.
Appellants filed answers admitting they executed and delivered the paper sued on, but they allege that the notes and mortgages described in causes of action 1, 3, and 4 were not due and that the action as to them was prematurely brought deny the balance due is as much as alleged; deny the indorsements to appellee and that he is the bona fide holder; deny that the covenants and terms of the notes and mortgages have been broken; affirmatively allege that the note set out in the first cause of action was given by them in payment of the purchase price of the land mortgaged to secure it; that contemporaneously the grantor and payee of note gave to them an agreement to credit on note $29 for each acre that might be destroyed by the Gila river during the next fifteen years, and in case note was paid before the expiration of fifteen years to make good any acreage, at $29 per acre, thereafter destroyed within the term of fifteen years; that said agreement for credit on account of erosion was agreed to be and was attached to the note; that said note was altered by detaching said agreement therefrom without their knowledge or consent and in the erasure of an indorsement by the payee, on the reverse side of note, waiving its collection until 1931. It is alleged that the waiver of the right to collect this note until 1931 was indorsed thereon in consideration of the execution and delivery to the payee of the notes and mortgages described in causes 3 and 4. Appellee and his assignor, H. C. Ussher, are charged with combining and conspiring to defraud appellants out of their land and to defeat a number of other lienholders and mortgages having claims against the property.
The case was tied before the court with a jury.
To special interrogatories as to the amount of credit appellants were entitled to for erosion of land, the jury answered $542. The court ignored this finding to the extent of reducing the allowance for erosion to $362, and entered judgment for the full amount of the notes, interest, attorney's fees, and costs, less $362.
From this judgment the appellants prosecute this appeal.
The transcript of the testimony is not a part of the record, nor is there any bill of exceptions or statement of facts made a part of the record. There are some exhibits in the files, but there is nothing to explain how they affect the issues or to identify them as competent or material. In short, as the case is presented we are limited to an examination of the pleadings, and if therefrom it shall appear that the judgment is within the issues and that the suit was not prematurely brought and the note not altered, we must affirm the judgment.
Concerning the contention that the notes described in causes numbered 1 3, and 4 are not due, and that the suit thereon is premature, we have this to say: These three notes, according to their terms, were due in 1931, but...
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Vonk v. Dunn
...of equitable considerations to the question of whether late taxes should trigger acceleration clauses. In Holman v. Roberts, 35 Ariz. 110, 114, 274 P. 775, 780 (1929), we held that the mortgagee's extension of the time for payment did not excuse the mortgagor of his obligation to pay taxes ......
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Browne v. Nowlin
...of their rights arising from a tax delinquency due to appellant's failure to pay real estate taxes in 1972 and 1973. Holman v. Roberts, 35 Ariz. 110, 274 P. 775 (1929). The mortgage unlike the note, provided for acceleration of the debt upon the mortgagor's failure to pay real estate taxes.......
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...be a remedy which would remain available to the mortgagee in the event of a subsequent default by the mortgagor. See Holman v. Roberts, 35 Ariz. 110, 274 P. 775 (1929); 59 C.J.S. Mortgages § 495(6) at 799 The other case cited by appellants, Arizona Coffee Shops, Inc. v. Phoenix Downtown Par......
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Lane v. Mathews
...made. It must be remembered that in equity cases the jury's verdict is advisory only and may be disregarded by the court. Holman v. Roberts, 35 Ariz. 110, 274 P. 775. The court in effect found, when it ordered the trial to proceed on the question of the breach of the written agreement, eith......