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Arizona Land & Stock Co. v. Markus

Supreme Court of Arizona

February 18, 1931

ARIZONA LAND AND STOCK COMPANY, a Corporation, Appellant,
I. A. MARKUS, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.

Messrs. Baker & Whitney and Mr. William G. Christy, for Appellant.

Mr. Sam H. Kyle and Mr. C. R. Lynch, for Appellee.


[37 Ariz. 531] LOCKWOOD, J.

I. A. Markus, hereinafter called plaintiff, brought suit against Arizona Land & Stock [37 Ariz. 532] Company, a corporation, hereinafter called defendant, to quiet title to a certain parcel of ground located in the town of Gila Bend. The case was tried to the court without a jury, and judgment rendered in favor of plaintiff, and from said judgment this appeal was taken.

Plaintiff's complaint, in substance, alleges that he is the legal owner of lot 12, block 13,

Page 252

of the townsite of Gila Bend, and that he acquired title to said real estate by a sheriff's deed, dated February 12, 1926, by virtue of a sale under execution issued out of the superior court of Maricopa county, in an action in escheat by the state of Arizona against John Doe, Richard Roe and the unknown heirs of Joe Horran, deceased. The complaint then sets up that the defendant named herein asserts some right or interest in the real estate adverse to the rights of the plaintiff, and has entered upon the premises and is withholding them from plaintiff, and ends with the usual prayer for relief in the ordinary suit to quiet title. There were other parties named as co-defendants, but, as they either disclaimed or defaulted, we need not consider them.

Defendant demurred to the complaint, denied plaintiff's ownership, and set up the affirmative defense that it claimed title to the land by virtue of a tax deed issued as the result of a suit instituted in the year 1924 by the state of Arizona and the county of Maricopa for the purpose of the collection of certain delinquent taxes on said premises for the years 1908 to 1920, inclusive, and by adverse possession for more than ten years. It also alleged the escheat suit did not make defendant a party thereto, nor was it served with any process therein, nor had it any notice of such suit; and, further, that the state of Arizona, at the time of the institution of the escheat proceedings, had knowledge of defendant's claim to such [37 Ariz. 533] land. It asked that its title be quieted against plaintiff. The demurrer was overruled, and the case tried before the court on various written exhibits, and the testimony of a large number of witnesses, and judgment was rendered in favor of plaintiff, quieting his title as prayed for.

There are some four assignments of error, the first three of which, in substance, are that the judgment was contrary to the evidence and the law, for three reasons: (a) That the evidence was not sufficient to sustain a finding that title to the premises was in plaintiff; (b) that the evidence showed affirmatively that plaintiff's only source of title was a judgment which was void and of no effect as against defendant; and (c) that the evidence showed a title to the premises in defendant superior or equal to plaintiff's title. No transcript of the testimony was filed, although the minutes show that a number of witnesses were heard, and it is urged by plaintiff that under our holdings, when the record shows affirmatively that the evidence on which the trial court based its judgment is not all before this court, we will not consider an assignment that the evidence does not sustain the judgment. Ensign v. Koyk, 31 Ariz. 1, 250 P. 246; Billups v. Utah Canal etc. Co., 7 Ariz. 211, 63 P. 713; Thomas v. Bartleson, 14 Ariz. 513, 131 P. 973.

Defendant, on the other hand, contends that, while this is the rule in the ordinary case, yet where, as in this case, the principal exhibits are certified copies of the judgment-rolls of two actions in a court of record, and therefore not susceptible of contradiction by parol evidence, this court can and should consider such assignments of error. We are of the opinion that the true rule in such a situation is that, if the judgment-rolls merely fail to present sufficient evidence to sustain the judgment, we will presume that the parol evidence supplied the missing links in the [37 Ariz. 534] chain, and will therefore hold that the evidence was sufficient. If, however, it appears affirmatively from the judgment-rolls so in evidence before us that certain facts exist which as a matter of law would make the judgment rendered erroneous, we will then reverse the case on the ground stated. Let us then examine the judgment-rolls in question to determine whether or not they show affirmatively that the judgment rendered in this case is contrary to law.

Plaintiff's title is based on the sheriff's deed issued as a result of suit No. 21012-B, filed in the superior court of Maricopa county. The title of this case is "State of Arizona against John Doe, Richard Roe and the unknown heirs of Joe Horran, deceased." The complaint sets up, in substance, as follows:

Prior to the year 1915 Joe Horran, who was then seized in fee of the land in question in this action, left the town of Gila Bend, Arizona, and died intestate shortly thereafter; leaving no widow nor any known kindred capable of inheriting his estate. The complaint further alleges "that the said Joe Horran, deceased, was the last person lawfully seized of said land, but that the defendants, John Doe and Richard Roe, are now in the possession of said real estate and premises, and are claiming, or attempting to claim, an interest therein, adverse to the State of Arizona and in violation of the statutes thereof." It then states that more than seven years have elapsed since Joe Horran has been known to exist; that no part of the estate has been sold for the payment of any alleged debts of the deceased; that none of the defendants have any right to the estate, and that it has escheated to the state of Arizona. There follows a prayer that the property be adjudged to belong to the state, and that it be sold as provided by law.

The county attorney filed an affidavit setting up "that the residence of the defendants, John Doe, [37 Ariz. 535] Richard Roe and the unknown heirs of Joe Horran, deceased, are unknown to this affiant; that personal service of summons cannot be had on said defendants, as he is advised and informed," and asked for service by publication, which service was ...

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