STURGIS B. WHITWELL, Appellant,
W. F. GOODSELL and CHARLES BLIXT, Appellees
APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Judgment reversed and cause remanded, with directions.
Mr. Arnold T. Smith, for Appellant.
Mr. Ben C. Hill, for Appellees.
[37 Ariz. 452] ROSS, J.
This suit was brought by W. F. Goodsell and Charles Blixt against D. W. and J. Z. Baker and Josephine and Charles E. Udall, alleging two causes of action. One thereof had for its purpose the securing a construction of a "lease and bargain of sale" from the defendants to the plaintiffs of the unpatented mining claim "Sponto," located in the Silver Hill mining district, Pima county, and the other the quieting of plaintiffs' title to the "Princess" mining claim, a subsequent location by Goodsell of the same ground.
Some time after the institution of the action, Sturgis B. Whitwell obtained permission to intervene and filed his complaint to quiet his title to the ground claimed by plaintiffs and defendants, under a location thereof known as the "Mary G." mining claim, made in 1917, long prior to the location of either the "Sponto" or the "Princess."
The trial, which was before the court without a jury ended in the elimination from the case of the Bakers and the Udalls, the court holding the "Sponto" location to be void and the "lease and bargain of sale" of no effect on the title, from which holding the Bakers and
Udalls have not appealed. The court further held the ground was open to location when Goodsell located the "Princess," on January 10, 1927, and entered judgment in favor of Goodsell and Blixt, to whom Goodsell had sold a one-half interest in the "Princess," and against the intervener Whitwell, who claimed the ground under the "Mary G." location. Whitwell has appealed, assigning as grounds therefor: (1) That the court's findings [37 Ariz. 453] of fact, to the effect that the assessment work for the year 1926 on the "Mary G." had not been performed for the benefit of said claim, was against the evidence and erroneous; (2) that the court's finding that the "Mary G." ground was open to location on January 10, 1927, when Goodsell located the "Princess," was contrary to, and unsupported by, the evidence; (3) that the court's holding that plaintiffs were not estopped to deny intervenor's title was erroneous; (4) that the conclusions of law were erroneous.
The undisputed evidence is that the "Mary G." mining claim was properly located by one James Guy on January 1, 1917; that he conveyed, on October 13, 1919, to intervenor, Whitwell, who, in turn, on March 25, 1920, conveyed to the Limitrofe Mines Company; that thereafter it was sold, under a judgment and execution against the Limitrofe Mines Company, to one John T. Clark, who, on December 21, 1922, for a valuable consideration, assigned and transferred the sheriff's certificate of sale to intervenor Whitwell, to whom, on August 15, 1928, the "Mary G." was conveyed by sheriff's deed.
It is also undisputed that no representation or annual assessment work was done or performed on the "Mary G." from 1922 until 1926, when, in May or June, one hundred dollars' worth of work was done thereon by B. G. Granville, under an option to purchase given him by W. W. Worsley.
It is also undisputed that Tom K. Richey, of Tucson, had a general power of attorney from Whitwell authorizing him to do all and every act and thing requisite or necessary in selling premises, as fully as he might or could do if personally present; that Richey as such attorney-in-fact of Whitwell gave oral authority to Worsley to give options on the "Mary mining claim.
[37 Ariz. 454] It is also undisputed that Goodsell first went into possession of the "Mary G." ground under an option to purchase the "Mary G." mining claim granted him by ...