Hannel v. Bates

SPENCE, J.

This is an appeal by defendants Kenneth J. Kirkpatrick and Fay R. Kirkpatrick from a decree foreclosing a mortgage executed by defendant Bates, the predecessor in interest of the appealing defendants.

The note and mortgage were dated March 5, 1925, and the note was payable three years after that date. The appealing defendants purchased the mortgaged property in 1926, taking the property subject to the mortgage but not expressly agreeing to pay the same. Said defendants paid the interest thereon up to September 1, 1932. No payments wer£ made upon the principal. This action was filed on December 8, 1933.

In the complaint, it was alleged that on or about August 1, 1931, plaintiffs and the appealing defendants had "agreed in writing to an extension of three years and that the written agreement signed by plaintiffs and said defendants was in the possession of said defendants. No demurrer was interposed to the complaint. In their answer said defendants- denied these allegations and affirmatively alleged that the action was barred by the provisions of section 337 of the Code of Civil Procedure.

Prior to the trial plaintiffs served notice demanding the production of the alleged written agreement of extension. It was not produced and plaintiffs introduced oral evidence of its contents. This evidence showed that the appealing defendants called on plaintiffs on August 2, 1931, in response to a letter written to them by plaintiff Marie Hannel; that at said time the - question of extension was discussed 'and a writing was drawn “agreeing to extend the mortgage to Mr. and Mrs. Kirkpatrick” for two years; that said writing was signed by plaintiffs and the appealing defendants and was given to said defendants. It was admitted by said defendants that they discussed the extension with plaintiffs at that

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time, but they denied that any writing was executed. Upon this conflicting evidence, the trial court found in favor of the existence of the written agreement of extension and further found that the action was not barred.

Appellants do not question the sufficiency of' the evidence to support the findings or the sufficiency of the findings to support a decree of foreclosure. They do make a claim that the complaint was insufficient to state a cause of action against appellants but this claim is devoid of merit.