R. C. SHIFLET and LEONA M. SHIFLET, His Wife, Appellants,
MAY B. MARLEY, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment affirmed.
Messrs. Cox & Hibbert, for Appellants.
Messrs. Woolf & Shute, for Appellee.
[58 Ariz. 232] LOCKWOOD, C.J.
This is an appeal by R. C. Shiflet and Leona M. Shiflet, his wife, defendants, from a judgment in favor of May B. Marley, plaintiff. The facts shown by the record are not in serious dispute and may be stated as follows: In March 1931, [58 Ariz. 233] plaintiff loaned to defendants $6,000, for which they executed a negotiable promissory note payable in three years and bearing interest at 8% per annum, payable quarterly. Concurrently, to secure the payment thereof, they gave plaintiff a mortgage on certain real property in Phoenix, which contained the usual covenants that mortgagors would keep the property insured, pay the taxes, and the like. In 1933 defendants conveyed the mortgaged property to Harry A. and Ethel Phillips, subject to the mortgage. In 1937 the latter conveyed the property to S. K. and Anna Phillips, also subject to the mortgage. In neither of these deeds did the grantees agree to assume or pay the debt. The original note, at the time of the last conveyance to S. K. and Anna Phillips, was long overdue, and they entered into the following agreement with plaintiff:
"That Whereas, on the 10th day of March, 1931, R. C. Shiflet and Leona M. Shiflet, husband and wife, executed a promissory note in favor of the party of the first part for the principal sum of Six Thousand Dollars ($6,000.00) payable three years after date and secured by a mortgage upon the following described real property, to-wit: (Description follows)
"And Whereas, the parties of the second part are now the owners of said real property as evidenced by deeds of conveyance duly executed, acknowledged, and recorded in the Recorder's office of said Maricopa County;
"And Whereas, said promissory note had not been paid and the said May B. Marley agrees to extend the time of payment thereof up to and until the 10th day of March, 1940, reducing, however, the interest payable on said sum from the amount provided for in said note to 6% per annum, interest payable monthly.
"Now, Therefore, in consideration of such extension, the said S. K. Phillips and Anna Phillips agree to pay said promissory note with interest thereon at the rate of 6% per annum, interest payable monthly, upon the said 10th day of March, 1940, reserving the [58 Ariz. 234] right, however, to pay the principal sum of said note at any time prior to said date, together with interest thereon up to said date of payment.
"In Witness Whereof, the parties hereto have set their hands this 20th day of February, 1937.
"May B. Marley
"Party of the First ...