Mortgage Investment Co. of El Paso, Texas v. Taylor
| Decision Date | 24 May 1937 |
| Docket Number | Civil 3599 |
| Citation | 49 Ariz. 558,68 P.2d 340 |
| Parties | MORTGAGE INVESTMENT COMPANY OF EL PASO, TEXAS, a Corporation, Appellant, v. MAE TAYLOR, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Seperior Court of the County of Maricopa. J. C. Niles, Judge. Judgment affirmed in part and reversed in part with directions.
Mr Thomas W. Nealon, for Appellant.
Mr Henderson Stockton, Mr. Emmett R. Feighner and Mr. Eli Gorodezky, for Appellee.
This action by the Mortgage Investment Company of El Paso, Texas against Mae Taylor was filed February 5, 1934, and is for rent for the Westward Ho Apartments, located on lots 20 and 22 block B, Bennett Place, Phoenix. The pleadings are very voluminous and we set forth only their substance. These facts appear in the pleadings:
The Phoenix Land & Investment Company bought lots 20 and 22 and built the apartment house (containing 29 apartments) thereon, in pursuance of a written lease dated May 10, 1929, between it and the defendant in which defendant bound herself to pay the Phoenix Land & Investment Company $1,000 per month for ten years from date apartments were finished and ready for occupancy. On the date of such lease defendant paid lessor $10,000, one-half of which was to be applied in payment of the first five months' rent and the balance on the last five months'. The building was finished and occupied by defendant October 12, 1929, from which date the rent ran.
On September 30, 1930, the Phoenix Land & Investment Company deeded the premises to the Phoenix Investment & Development Company, but before this was done the former company, on July 18, 1930, mortgaged the apartment house and lots, including the income and rents thereof, and on July 25, 1930, assigned the lease to the Marr Mortgage Company as security for a loan of $45,000, evidenced by the mortgagor's negotiable coupon notes with the right to the mortgagor to collect and use the income and rents so long as there was no default in payments on the mortgage.
January 3, 1933, the Marr Mortgage Company assigned the lease and all rents due thereunder, or to become due, to the plaintiff and on July 8, 1933, it assigned to plaintiff its mortgage upon which at the time there was an unpaid balance of $40,000.
It is alleged that after April 1, 1932, defendant defaulted in the payment of rent and thereafter paid only $2,790 on account of rent, leaving a balance at the date of filing complaint of $20,210.
Defendant in her answer admits the making of the lease as alleged in the complaint and sets forth that before the work of constructing the apartments was commenced, or soon thereafter, by mutual agreement the plans and specifications were changed to make the apartments more desirable and more comfortable and because of the added cost of such changes it was agreed that the rent should be $1125 per month instead of $1,000, and that a new written lease should be made covering such changes, such new lease to be prepared by the Phoenix Land & Investment Company; that, although defendant frequently requested such company to prepare a new lease in accordance with its agreement, it failed and neglected to do so and as a consequence she occupied the premises under the verbal substituted lease, which was the same as the written except as specified. She alleges that she paid the Phoenix Land & Investment Company the rent, at $1125 per month, until April 1, 1932, at which time the rent was in arrears in approximately the sum of $5,000; that on said date she and the Phoenix Investment & Development Company, which had become the owner of the property under date of September 30, 1930, entered into a verbal contract under which it was agreed that the $5,000 which she had paid to the Phoenix Land & Investment Company to be applied on the last five months of the original lease should be applied to satisfy her arrearages on the substituted lease up to April 1, 1932, and that thereafter she should act as manager of the property for the Phoenix Investment & Development Company, receiving for her services the sum of $150 per month.
Defendant by way of cross-complaint alleged that on or about April 1, 1932, she and the Phoenix Investment & Development Company, the owner of the property, entered into an agreement concerning the use and occupancy of the Westward Ho Apartments, by the terms of which she would thereafter receive "for her services in managing and conducting apartment house" $150 per month; that the Phoenix Investment & Development Company should have all the income of the business and pay all the expenses thereof, including taxes on certain enumerated furniture in the apartments amounting to $1739.45; that it failed to pay said taxes and also the sum of $692.61 operating expenses; that plaintiff knew of the Phoenix Investment & Development Company's agreement to pay taxes and operating expenses and with said knowledge accepted moneys from said company paid to it by defendant; and that by reason thereof defendant should be allowed a set-off of the said taxes and operating expenses.
Plaintiff filed a general demurrer to the cross-complaint and the order overruling it is the plaintiff's first assignment of error.
The case was tried to a jury on special interrogatories and the court adopted the jury's findings and made additional findings of fact and concluded therefrom that the plaintiff should take nothing against defendant, and that defendant was entitled to judgment against plaintiff on her cross-complaint for the sum of $2,432.06, and entered judgment accordingly. Plaintiff has appealed, assigning fifty-four reasons therefor which have been reduced to twenty-one propositions of law. What these are, or some of them, will appear from our opinion herein. We shall refer to the parties as they were below, as plaintiff and defendant; to the Phoenix Land & Investment Company as mortgagor or lessor, and to its successor, the Phoenix Investment & Development Company, as landlord.
It seems obvious that the court should have sustained the plaintiff's general demurrer to defendant's cross-complaint. The right to...
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In re Oklahoma PAC First Ltd. Partnership, Bankruptcy No. B-89-08110-PHX-SSC. Adv. No. 91-124.
...which is dispositive of the factual issue before this Court. This Court has reviewed the decision of Mortgage Investment of El Paso Tex. v. Taylor, 49 Ariz. 558, 68 P.2d 340 (1937). The plaintiff, in Taylor, held a mortgage on an apartment house as security for an indebtedness due and owing......
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