Londen v. Hay

445 P.2d 852, 8 Ariz. App. 295, 1968 Ariz. App. LEXIS 527
CourtCourt of Appeals of Arizona
DecidedOctober 14, 1968
DocketNo. 1 CA-CIV 589
StatusPublished

This text of 445 P.2d 852 (Londen v. Hay) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Londen v. Hay, 445 P.2d 852, 8 Ariz. App. 295, 1968 Ariz. App. LEXIS 527 (Ark. Ct. App. 1968).

Opinion

STEVENS, Judge.

The appellees herein will be referred to as the plaintiff. The appellants herein will be referred to as the defendant. The defendant seeks to reverse the trial court’s after-judgment order which denied the request of the defendant to vacate the Sheriff’s Sale of real property, a sale conducted on a special execution issued after a judgment of mortgage foreclosure. There were two basic grounds urged in the trial court and the same grounds are urged here. These grounds are that the sheriff did not first sell the personal property covered by a chattel mortgage which was foreclosed in the same judgment as the real property mortgage foreclosure and that the sale price on the execution sale of the real property was so grossly inadequate as to be inequitable.

The judgment of foreclosure is not attacked. In point of time, the judgment is the first trial court document presented to this Court. The judgment names as defendants :

“WORLD INTERNATIONAL GROUP, INC., an Arizona corporation; JACK W. LONDEN and DORIS M. LON-DEN, his wife, if they be living; their unknown heirs if they be dead; JOHN DOE 1-10, JANE DOE 1-10 and A through Z corporations.”

The judgment was “approved as to form” by the then counsel for the defendant. The judgment confirms

“The default of each of the defendants who have not answered or otherwise appeared in this action * *

We are not informed as to the defendants, other than the appellants who were served, or as to the manner of service.

In reconstructing the factual background of this case we have called upon the judgment of foreclosure; the reporter’s transcript of the testimony which was presented at the after judgment hearing with the exhibits introduced in evidence at that hearing; and the arguments of counsel presented to this Court during the course of the oral argument of the merits of this appeal.

The plaintiff purchased the land in question, then vacant, in 1959. He improved the land by causing the dwelling in question to be constructed thereon. The dwelling had unusual features which, in the opinion of one of the persons who testified at the after judgment hearing concerning the value of the land and its improvements, [297]*297rendered the property not readily salable. In connection with the construction of the dwelling, the plaintiff executed a note and mortgage dated 10 February 1961. The plaintiff’s total investment, including the note and mortgage, was approximately $175,000.00.

In March 1962 the plaintiff sold the property to the defendant. The property was sold without furnishings. The purchase price was $150,000.00 of which $10,-000.00 was paid in cash, a portion was paid by assuming the February 1961 note and mortgage and the balance was evidenced by a further note and mortgage, these documents bearing the date of 15 March 1962. The Purchase Agreement contained the following provision:

“* * * as the furniture is moved in the house Mr. Londen agrees to give Dr. Hay a chattel mtg on same as additional security for payment of the second mtg & note.”

A chattel mortgage of even date was executed. No personal property was described therein although A.R.S. § 33-752.01, then in effect, provided, in part:

“B. The mortgage may be made in substantially the following form:
****** “That the mortgagor mortgage., to the mortgagee:
(Description of property) as security for the payment to him of _dollars, * *

The chattel mortgage provided, in part:

“The mortgagors * * * grant, bargain, sell and mortgage unto Mortgagees, items of furniture, furnishings, and equipment to be acquired by Mortgagors and placed by or for them on the above described property, said furniture, furnishings, and equipment having an original purchase price of Twenty Thousand Dollars ($20,000.00), it being specifically understood and agreed that this Chattel Mortgage shall without any further act of Mortgagors or Mortgagees be deemed to impose a lien upon all such furniture, furnishings and equipment as and when the same are owned or acquired and placed as aforesaid (all furniture, furnishings and equipment at any time subject to the lien hereof being hereinafter referred to as the ‘Property’) ;
******
“This Chattel Mortgage is made upon the following express provisions, convenants and conditions:
******
“3. If at any time, or from time to time, Mortgagees or their attorney shall deem it advisable and shall so request, Mortgagors shall execute an appropriate supplement or supplements to this Chattel Mortgage expressively and effectively including within the lien hereof any and all of the Property which may hereafter be acquired by Mortgagors.” ■

The plaintiff testified, and this testimony was not contradicted, that at the time of the sale and the execution of the mortgages he anticipated that the defendant would move furniture from Colorado and place it in the house. This the defendant did not do. The defendant occupied the dwelling for a time after his purchase. The reporter’s transcript discloses his testimony, in part, as follows:

“A Well, sir, we camped there for about six months. We really didn’t have our furniture there.
“Q You occupied the premises for six months ?
“A I believe it was about six months, yes, sir.”

Thereafter the defendant sold the property to World International Group, Inc. One Lefferdink entered into occupancy of the dwelling. He was not available as a witness at the time of the after judgment hearing. World, in its purchase, did not assume any of the mortgage indebtedness. The defendant’s testimony continues:

“Q And then, who occupied it thereafter?
[298]*298“A Primarily, World International Group occupied it after we sold it to that.
******
“Q And who was in possession of the premises when this foreclosure action was commenced?
“A I believe the property had subsequently been transferred to International Thrift Club, and to the best of my knowledge they were in possession of it at that time.
“Q At the time you made the sale to World International Group, did you sell your furniture, also?
“A Well, the furniture that we were, as distinguished from the rugs and drapes, was not in there at that time.
“"Q Was not in there at that time ?
'“A No, sir.
“Q You sold to World International Group the home, the real property, plus the carpets and drapes?
“A I believe that would have covered the carpets and drapes. I am not sure as to the—
“Q What did you do with the furniture ?
“‘A The furniture that is in there was placed in there since the time we sold.

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Bluebook (online)
445 P.2d 852, 8 Ariz. App. 295, 1968 Ariz. App. LEXIS 527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/londen-v-hay-arizctapp-1968.