Keefer v. Porterfield

WHITE, J., pro tem. Defendant has appealed from a judgment rendered against her for $21,022.96 and costs in an action upon a promissory note executed by defendant Margaret S. Porterfield and her husband W. L. Port¿rfield, in favor of Harry A. Reidy, dated July 8, 1929, for $16,500, due one year after date, and assigned by Reidy to plaintiff Jerome Keefer. The action was dismissed as to the defendant W. L. Porterfield because he was out of the state ¡and it was impossible to obtain personal service of process upon him.

At the trial it was stipulated that the promissory note which was the subject of this action had been transferred to ¡plaintiff Keefer after maturity, subject to any defenses: good against the original payee, Harry Reidy.

On the appeal now before us appellant contends that there has been a total failure of consideration, andj that appellant Margaret S. Porterfield received nothing whatever in consideration for the making and execution of the promissory note in question; that the findings and judgment lack support in the evidence, and that the evidence is insufficient to show that plaintiff is the owner of the note.

[405]For a consideration of the grounds upon which the judgment is assailed, a statement of the facts, as disclosed by the evidence, becomes necessary. In 1926, Harry A. Reidy (now deceased) owned a ranch at Hemet. A short time before October 8, 1926, Reidy entered into negotiations with W. L. Porterfield (husband of appellant here) for the sale of the Hemet ranch. However, the negotiations finally terminated in a deal whereby Reidy deeded the Hemet ranch to Porterfield and Porterfield delivered to Reidy a $25,000 promissory note, executed by himself and wife (the appellant herein). Reidy also gave to Porterfield the sum of $12,500, and the latter delivered to Reidy a $12,500 note and mortgage, dated October 8, 1926, also executed by himself and wife, upon the Hemet ranch.

With the ranch in his possession, and Reidy holding the unsecured note for $25,000 and the secured note for $12,500, Porterfield then turned the ranch over to the Prudential Mortgage Company, subject not only to the aforesaid $12,500 note, but also to a second mortgage, the nature and amount of which is not disclosed by the evidence. Then, about June, 1928, Porterfield contacted Reidy, advising the latter that he had tried to foreclose the second mortgage on the ranch as against the mortgage company (to whom he had deeded the ranch), but that the mortgage company was defending against such foreclosure. Porterfield asked Reidy to foreclose the $12,500 first mortgage, so as to eliminate the mortgage company, as well as the second mortgage, thereby putting Porter-field back where he was before he had put on the second mortgage and sold the property. Porterfield offered to pay the costs, of these foreclosure proceedings and to give a new note, signed by himself and wife (the appellant herein) for $12,500, in lieu of the original $12,500 note, which of necessity must be delivered into court for cancelation when the first mortgage- was foreclosed. About this time Reidy assigned the original $12,500 note and mortgage to one Comfort (his son-in-law), and the latter, in September, 1928, started an action to foreclose the original $12,500 mortgage. A judgment was rendered foreclosing the mortgage, and pursuant thereto the foreclosure sale was held June 15, 1929. On July 17, 1929, Porterfield wrote to Comfort, agreeing to pay in full the $25,000 note originally executed in favor of