Shlaudeman v. Grubel

TURRENTINE, J.,

pro tem.

On February 16, 1921, the defendants Grubel executed and delivered to Henry Shlaude: man their promissory note for $15,000, payable in five years. On the same date, B. F. Grubel only executed and delivered to Henry Shlaudeman a mortgage covering real property, said mortgage being to secure the payment of the aforementioned note, which mortgage was duly recorded. On May 9th, B. F. Grubel conveyed the property described in the mortgage to Harriet A. Simpson, said deed stating that the conveyance was subject to all mortgages and other incumbrances of record. Henry Shlaudeman died in 1923, and plaintiff herein succeeded to his interest in the mortgage as trustee under the will of Henry Shlaudeman, now deceased. The trial court found, and was justified from the evidence in finding, that prior to February 16, 1926, it was agreed in writing by Harriet A. Simpson and plaintiff that upon the payment to plaintiff of $1,000 immediately and a further payment of $3,000 on or before February 16, 1926 (the due date of the note), the payment of the promissory note secured by the mortgage would be extended to February 16, 1927. Pursuant to this agreement, Harriet A. Simpson paid plaintiffs on account of the principal of said note $2,500 before February 16, 1926, and $1500 February 17, 1926, at which time the parties, pursuant to the aforementioned agreement, agreed in writing that the time of the payment of the note secured by the mortgage be extended to February 16, 1927, and that Harriet A. Simpson would pay said note on the date of maturity as extended.

Mrs. Simpson died February 7, 1929, whereupon defendant L. H. Simpson was appointed, administrator of her. estate, and thereafter a claim for the note above referred to was presented to the administrator of the estate of Harriet A. Simpson, deceased, which claim was in the form required by section 706 of the Probate Code. This claim was approved February 16, 1929, by the administrator, and allowed and approved June 24, 1929, by the judge of the court before whom the probate proceedings were pending in Los Angeles

[502]

County. The claim was allowed for $10,000, the principal amount due and unpaid, and interest.

On August 19, 1931, L. H. Simpson, as such administrator, filed a verified account in the probate proceedings wherein the claim of plaintiff, allowed by the administrator and approved by the court, was described and set forth and the note and mortgage was referred to and described as a claim against said estate, and on September 14, 1931, the Superior Court of Los Angeles County, wherein the estate of Harriet A. Simpson was pending, settled and allowed said account by an order duly made and entered. No appeal or other proceedings in respect to said account have been taken and said order is now final.