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Neavitt v. Upp

Supreme Court of Arizona

June 23, 1941

TOM P. NEAVITT, ELIZABETH NEAVITT, NELLE NEAVITT ALLEN, NORA NEAVITT McKINNEY and JULIA NEAVITT BOYD, Heirs of BETTIE NEAVITT, in Their Sole and Separate Right, Appellants,
v.
FRANK M. UPP, Appellee

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

Messrs. Houston & Dodd, for Appellants.

Mr. Richard H. Chambers, for Appellee.

Mr. James M. McGrath, of San Francisco, California, Special Attorney for Home Owners' Loan Corporation, Amicus Curiae.

OPINION

[57 Ariz. 446] LOCKWOOD, C.J.

Frank M. Upp, plaintiff, brought this action asking for a declaratory judgment that a certain note and mortgage made by

Page 901

him on January 18, 1934, to Tom P. Neavitt, Elizabeth Neavitt, Nelle Neavitt Allen, Nora Neavitt McKinney and Julia Neavitt Boyd, heirs of Bettie Neavitt, in their sole and separate right, defendants, be declared null and void.

A cross-complaint was filed, asking judgment on the note and that the mortgage be foreclosed and the property sold to satisfy the judgment. This note and mortgage admittedly were executed under the following circumstances: Prior to the date thereof defendants owned certain property in the city of Tucson, which was subject to a mortgage. This were selling this property to plaintiff under a contract, and both the payments of plaintiff to defendants thereunder and those due on the mortgage were greatly in default. Plaintiff endeavored to refinance the property through the Home Owners' Loan Corporation, hereinafter referred to as the HOLC. The matter was thoroughly discussed with W. R. Wayland, state manager of the HOLC, and J. J. O'Dowd, who was its local representative, [57 Ariz. 447] and finally plaintiff wrote to defendant Tom Neavitt, who apparently was handling the transaction for his co-defendants, as follows:

"Tucson, Arizona

"Dec. 28, 1933

"Tom Neavitt: --

"At last I have heard from the Home Owners Loan Corporation. However it was very disappointing. It is as follows:

"'We have had an inspection as well as an appraisal made of your property and find that your principal indebtedness will have to be reduced approximately $400 in order for this corporation to refinance your home. If this can be accomplished and you will have the holder of your mortgage so ...


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