Loucks v. Luckel

DORAN, J.

The action herein is one to foreclose a trust deed in the sum of $1,400 executed by the appellant Luckel to one Nellye B. McLachlan, deceased. The trial court found in favor of respondents in the amount claimed, together with interest of $525 and an attorney fee of $350.

In 1942 Luckel had executed a note to Nellye B. McLachlan, secured by a mortgage, in the sum of $700, bearing interest at 7 per cent. On June 15, 1944, McLachlan accepted a new note for $1,400 with 6 per cent interest, secured by the trust deed here involved. It is the appellant’s contention that there was no consideration for the execution of the larger note and trust deed other than the former debt of $700, and that the $700 debt had been fully discharged by payment. Appellant claims that the larger amount was inserted to cover any additional loans which might be made, but that no other money was ever advanced by Mrs. McLachlan.

Upon objection of plaintiffs, the trial court excluded evidence offered by appellant to show payments on the ground that a claim for the payments should have been filed against the McLachlan estate. Appellant’s brief, however, calls attention to the fact that Luckel was making no demand or claim as a creditor against the estate but was merely offering the evidence for the purpose of showing that the note had been paid.

' On this proposition is cited section 440 of the Code of Civil Procedure providing that “When cross-demands have existed between persons under such circumstances that if one had brought an action against the other a counterclaim could have been set up, the two demands shall be deemed compensated in so far as they equal each other, and

neither can be deprived thereof by the assignment or death of the other.”

(Italics added.)

[219]

Also cited as authority for appellant’s contention that evidence of payment was admissible notwithstanding no claim had been filed against decedent’s estate, is

Pendleton

v.

Hellman Com. etc. Bank,