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Munger v. Boardman

Supreme Court of Arizona

March 27, 1939

EDNA A. MUNGER and CHARLES P. MUNGER, Her Husband, Appellants,
v.
ELEANOR B. BOARDMAN, a Widow, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. E. G. Frazier, Judge. Judgment affirmed.

Mr. Stephen B. Rayburn, for Appellants.

Messrs. Marks & Marks, for Appellee.

OPINION

Page 537

[53 Ariz. 273] ROSS, C.J.

Plaintiff Eleanor B. Boardman, a widow, on February 10, 1938, filed this action against the defendants Edna A. Munger and Charles P. Munger, her husband, to foreclose a realty mortgage. The court granted plaintiff's prayer and entered a decree foreclosing the mortgage. Defendants have appealed.

The facts, as they appear from the pleadings and competent evidence, are as follows: On January 28, 1925, Frank Deiter and Mary Deiter, husband and wife, were the owners of Lot 21 in Wise Addition to Phoenix, Arizona, and on that date they made, executed and delivered a mortgage on said lot to Blanche Burnett to secure their note to her for $1,000, due January 28, 1928, and drawing interest at 8 per cent. payable semi-annually. Thereafter, on the same date, the defendant Edna A. Munger took a deed in her name to said lot subject to the Burnett mortgage, and paid the purchase price with the funds of the community, consisting of herself and her husband Charles P. Munger, also a defendant.

On January 28, 1928, the date the note and mortgage became due, Blanche Burnett, the mortgagee, entered into an agreement in writing, duly acknowledged, with Edna A. Munger "to extend the time of the payment thereof up to and until the 28th day of January, 1934," and in such agreement it is recited:

"Now, therefore, in consideration of such extension, the said Edna P. Munger, assignee of said Frank Deiter and Mary Deiter, agrees to pay said promissory [53 Ariz. 274] note, with the specified rate of interest thereon, upon the said mortgage, on 28th day of January, 1934, and if paid before said date that will pay to said Blanche A. Burnett 30 days advance interest or give 30 days notice."

Defendants' answer admits the execution of this agreement but claims that the extension was to run until the 28th day of January, 1931, and not to 1934. Defendant Edna A. Munger, as alleged in the answer, "in behalf of the community," thereafter paid delinquent taxes on the lot for the years 1933, 1934 and 1935. In 1934, at the request of said Edna, the interest rate was reduced from 8 per cent. to 6 per cent. and she, "in behalf of the community," paid the interest up to July 28, 1934, amounting to $120, and each six months thereafter paid the interest at 6 per cent. to July 28, 1937.

In the mortgage it was provided the mortgagors should keep the building on the said lot insured in favor of the mortgagee in the amount of the mortgage, which was $1,000. On February 1, 1934, Edna A. Munger procured an insurance policy from the Milwaukee Mechanics' Insurance Company, Milwaukee, Wisconsin, for $1,000 in her favor on the mortgaged property, for three years, and caused to be attached thereto as a rider a mortgagee clause to the effect that the loss or damage, if any, should be paid to the "Blanche Burnett Estate... as interest may appear," thus recognizing the lien of the mortgage. There were attached to the policy riders as follows: One dated November 22, 1934, at Phoenix, Arizona, which provided:

"The interest of the estate of Blanche A. Burnett in the mortgage in connection with which this policy of insurance was executed having been distributed by an order of court to Mary M. Burnett, a widow, and Eleanor B. Boardman nee Clarkson, this endorsement [53 Ariz. 275] is hereby attached and said transfer is hereby recognized.

"All other terms, limits and conditions remain unchanged.

"MUNGER INVESTMENT COMPANY

"By E. A. MUNGER, Agent."

Another dated July 30, 1936, at Phoenix, Arizona, which provided:

"Mary M. Burnett, joint owner of the mortgage on the within described property, being deceased, it is understood and agreed that this mortgage now stands in the name of:

"J. Otis Sullivan, Executor of the Estate of Mary M. Burnett and Eleanor B. Boardman nee Clarkson.

"MUNGER INVESTMENT COMPANY

"By E. A. MUNGER, Agent."


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