Seale v. Berryman, Civil 3575

• Citation: 49 P.2d 997,46 Ariz. 233
• Decision Date: 07 October 1935
• Docket Number: Civil 3575
• Parties: E. C. SEALE and CLARA L. SEALE, His Wife, Appellants, v. H. W. BERRYMAN, EDNA A. MUNGER and CHARLES P. MUNGER, Her Husband, Appellees
• Court: Supreme Court of Arizona

49 P.2d 997

46 Ariz. 233

E. C. SEALE and CLARA L. SEALE, His Wife, Appellants, v. H. W. BERRYMAN, EDNA A. MUNGER and CHARLES P. MUNGER, Her Husband, Appellees

Civil No. 3575

Supreme Court of Arizona

October 7, 1935

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Mr Ziba O. Brown and Mr. Thos. A. Flynn, for Appellants.

Mr Stephen B. Rayburn, for Appellees.

OPINION

LOCKWOOD, C.J.

This is an appeal by E. C. Seale and Clara L. Seale, his wife hereinafter called defendants, from a final judgment rendered against them and in favor of H. W. Berryman, as plaintiff. The facts, with perhaps one material exception, are not in dispute and may be stated as follows: On May 22, 1925, Charles E. English and his wife, who were then the owners of certain real property situate in Maricopa county, executed their promissory note for $1,250 due three years after date in favor of C. M. Berryman, and to secure the payment thereof gave a mortgage on the property above referred to. Thereafter the Englishes, through various mesne conveyances, transferred such mortgaged property to Loto S. Daniel and his wife. The Daniels then deeded part of the mortgaged property to H. A. Telford, and the other part, being that in litigation in the present action, to defendants. Under the terms of the deed to defendants the property was subject to the mortgage, but they did not expressly assume any personal responsibility for the debt secured thereby. Telford later deeded his part of the property to Edna A. Munger. By the terms of this last-named deed the grantee therein expressly assumed and agreed to pay the full mortgage debt of $1,250. The original note was not paid when due, and C. M. Berryman having died, it was assigned by the executor of his estate to plaintiff herein some few days after it had become due. Apparently nothing further was done in regard to the matter until the 22d day of November, 1929, when plaintiff entered into an agreement with Edna Munger and Charles P. Munger, her husband, which reads as follows: "Charles P. Munger. Extension of Mortgage, dated

November 22, 1929.

"Whereas, on May 22, 1925 Ann English and Charles English, wife and husband, executed a certain promissory note for $1,250.00 to C. M. Berryman due May 22, 1928, which said note is now held by H. W. Berryman and secured by mortgage on the following described real estate, to-wit: -- Beginning at a point 162.5 feet South of the Northwest corner of Lot 4 of Sunset Acres, according to the recorded plat in office of County Recorder of Maricopa County, Arizona, in Book 13 of Maps, page 3 thereof; running thence South 150 feet; thence East 135.25 feet; thence North 150 feet; thence West 135.25 feet to the place of beginning, which said mortgage was recorded in the office of the County Recorder of Maricopa County, Arizona, in Book 177 of Mortgages, page 256.

"And Whereas, said promissory note has not been paid, and the said present holder of said note and mortgage agrees to extend the time of the payment thereof up to and until the 22nd day of November, 1932.

"Now therefore, in consideration of such extension, the said Edna A. Munger and husband Charles P. Munger, agree to pay said promissory note, with the specified rate of interest thereon, upon the said 22nd day of November, 1932, and if paid before such date that they will pay to the holder of said note the interest in full upon said promissory note at the rate therein specified, up to and including said 22nd day of November, 1932."

Defendants Seale were not notified of the intention of plaintiff and the Mungers to execute an extension of time for payment, as aforesaid, nor did they ever agree thereto. The note not having been paid at the expiration of the time for which it was extended, suit was brought against the original makers of the note and mortgage, and all their grantees to and including defendants Seale and the Mungers were made parties to the suit. The prayer for relief was judgment against the Englishes and the Mungers for the principal of the note with interest and costs, and a foreclosure of the lien of the mortgages against all of the subsequent grantees of the Englishes, including the defendants herein and the Mungers. The Mungers answered, admitting all the foregoing facts, but alleging that they had no interest in the mortgaged premises, since they had, prior to the institution of the suit, executed and delivered to plaintiff a quitclaim deed to their interest in the premises. Defendants Seale answered with a general denial and then set up the assumption by the Mungers of the indebtedness, the extension of time for payment, and the transfer by the Mungers of their interest in the property to plaintiff, claiming that under such facts they were but sureties for the debt, and that the time of payment for the same had been extended without their consent. They contended that no judgment of foreclosure against the property owned by them could be granted for the reasons: (a) Since they were but sureties for the indebtedness after plaintiff had accepted the Mungers as the principal creditors, the extension of time of payment had released them; and (b) that by reason of the deed which the Mungers, then the principal debtors, had executed in favor of plaintiff, the mortgage and the title of the principal debtor being merged, the debt was extinguished.

The matter was tried to the court sitting without a jury, and judgment was rendered against the Mungers for the principal sum of the debt, and against all of the defendants, including defendants Seale, for a decree of foreclosure as to all of the property originally mortgaged by the Englishes.

The assignments of error raise in reality but one question of law, and that is whether under the foregoing facts that portion of the mortgaged property purchased by defendants Seale was released from the mortgage. It is of course the law that when A, the owner of certain property, is indebted to B and mortgages such property to B to secure an indebtedness, A cannot by any conveyances of the property, or any part thereof, to C, D or E relieve himself from the obligation of paying the indebtedness, or release any of the mortgaged property from the mortgage given to secure the indebtedness so far as...