Gump v. McPherson

STEPHENS, P. J.

This is an appeal from a judgment for the sum of $12,500 with interest upon a disallowed claim against the estate of A. W. McPherson, deceased. Appellant contends that the judgment cannot stand for the reason that the statute of limitations had run against a promissory note with a trust deed securing its payment before the claim was presented to the probate court.

The facts are as follows: On the twenty-third day of January, 1928, John A. Gump (plaintiff-respondent) delivered his check to C. D. Francis, trustee in a trust deed later herein mentioned, for the sum of $12,500 and received back the following writing, to wit:

“Santa Monica, California, “January 23rd, 1928.

“Whereas, John Gump has this 23rd day of January, 1928, purchased a one-half interest in and to that certain trust deed note of $25,000 dated Oct. 17th, 1924, due one year after date, executed by Charles L. Forgey in favor of C. P. Thomas, said note having been assigned in blank by C. P. Thomas dated December 10th, 1924, executed by Charles L. Forgey in favor of C. P. Thomas, recorded in book 621, page 448 of official records of Riverside county, California, I do hereby agree to protect said John Gump from any loss by reason of his purchase of one-half interest in said note and trust deed. Interest to start and run from 1/23/28.

“A. W. McPherson.”

“We hold the above note for collection,

“The First National Bank .in Santa Monica,

“C. D. Francis.”

The note referred to was an ordinary promissory note dated October 17, 1924, for the sum of $25,000, payable in one year after date, bearing interest at seven per cent per annum, signed Charles L. Forgey and assigned in blank December 10, 1924. The transfer is indorsed as accepted

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by C. D. Francis, trustee. The note was secured by deed of trust oh real property. Francis testified that he had a personal interest in the note on the day of this transaction.

On October 1, 1929, Francis and McPherson exchanged letters, Francis stated in his letter that he is, at McPherson’s request, deeding half of the trust deed property to Gump. The deed to be delivered when Gump returns the trust deed which he was holding for security. McPherson wrote in response as follows: