MAX LISITZKY, as Administrator of the Estate of HASKELL COHEN, Deceased, Appellant,
ARTHUR R. BRADY, as Administrator of the Estate of RICHARD G. BRADY, Deceased, Appellee
APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Judgment affirmed.
Messrs. Richey & Richey, for Appellant.
Messrs. Kingan & Darnell and Mr. Frederick G. Nave, for Appellee.
[38 Ariz. 338] LOCKWOOD, J.
This is an appeal from the judgment of the superior court of Pima county foreclosing an
equitable lien on certain property. There is little if any dispute in the facts, and we state them as follows:
In July, 1926, one Haskell Cohen was the owner of a large area of land near Tucson, Arizona, which he [38 Ariz. 339] desired to have subdivided and sold in small parcels. About this time he entered into a contract with Richard G. Brady, a realtor in Tucson, to the effect that the latter should make various improvements thereon at his own expense, and should have the exclusive right to sell the property as subdivided, being reimbursed for such expenses out of the sale of the land. The original agreement was modified several times, but the modifications were in furtherance of the general conditions above set forth, the principal changes being in regard to the amount of money to be advanced by Brady and the purposes thereof.
Cohen died on the 15th of December, 1928. At this time Brady had expended in the improvement of the property something over $20,000 more than had been repaid to him. A few months afterward Brady also died, and administrators for both estates were appointed, Max Lisitzky, hereinafter called appellant, being the administrator of Cohen's estate, and Arthur R. Brady, hereinafter called appellee, the administrator of the estate of Richard G. Brady.
Appellee made demand on appellant that he, as administrator of Brady's estate, be allowed to continue with the sale of the property, which appellant refused to allow on the ground that the contract, being one for the personal services of appellee's decedent, died with the latter. Thereafter appellee filed in the superior court of Pima county a suit against appellant, setting up in substance the facts above recited, stating the amounts advanced by Brady for the improvement of the real estate in question and remaining unpaid, and concluding as follows:
"That it is necessary that plaintiff's rights under said agreements herein pleaded be defined and declared, and to this end this action is brought under the Statutes of the State of Arizona providing for declaratory judgments to be rendered upon written [38 Ariz. 340] agreements and have determined any question of construction or validity arising under such instruments.
"Wherefore, this plaintiff prays for a declaratory judgment of this court setting forth a declaration of the rights of said plaintiff under and by virtue of said agreements herein pleaded, and of the duties of the defendant under said agreements and for such a definition of any legal relations under said agreements between the parties hereto as to the court appear by virtue of said agreements . . . . "
Thereafter on November 27, 1929, the court rendered judgment, which reads, so far as material, as follows:
"1. That said contracts came to an end and were terminated on the 15th day of December, 1928, the same being the date ...