APPEAL from a judgment of the Superior Court of the County of Pinal. Fred W. Fickett, Judge. Judgment affirmed.
Mr. Harry J. Valentine and Mr. Charles McClenny, for Appellant.
Mr. George P. Stovall, for Appellees.
[39 Ariz. 338] McALISTER, C. J.
In this action John Johnston seeks to recover from Margaret Smith the north fifty feet of lot 4, block 10, of the First Northside addition to the town site of Superior, Arizona, and from a judgment for defendant the plaintiff appeals.
The facts alleged in so far as necessary to a proper understanding of the case are these: In December, 1921, a tract of land consisting of about 36 acres adjoining the original town site of Superior, Arizona, was withdrawn from the Crook National Forest Reservation for town site purposes and on April 7, 1922, under the designation, the First Northside addition to the town site of Superior, entered in the United States Land Office as a town site by the judge of the superior court of Pinal county, ex-officio town site trustee. Between that date and March 30, 1923, he caused the land to be surveyed, platted into lots, blocks and streets, and a map thereof made and recorded in the office of the county recorder of Pinal county and following this notified all occupants of lots in the town site to file within ninety days from March 30, 1923, their respective statements of claims to lots. [39 Ariz. 339] Pursuant to this notice the plaintiff on April 24, 1923, executed and delivered his statement of claim to the north 50 feet of said lot four to H. H. Heiner, who was the representative or agent of the town site trustee, and at the same time paid said Heiner the legal fees and the purchase price therefor, which was accepted by him and has not been returned to the plaintiff by him or anyone else for him.
It appears further that on April 7, 1922, when the tract was entered as a town site, plaintiff was in possession of and actually occupying all of said lot 4, block 10, and had been for five years immediately preceding December 29, 1923; that at no time between March 30, 1923, and August 30, 1923, did defendant Smith make or deliver to the trustee or his agent, Heiner, any written statement of claim to the north 50 feet of said lot four, but, notwithstanding this, the town site trustee on December 29, 1923, executed and delivered to her a deed conveying the title to said north 50 feet, and ever since August 9, 1924, thereafter, she has been in possession of the same.
It is alleged also that between April 24, 1923, and August 30, 1923, plaintiff frequently requested said H. H. Heiner and Stephen H. Abbey, town site trustee, to set a time for hearing at which he could make proof of the facts set out in his statement of claim but that all these requests were refused; that there was a want of intrinsic fairness and honesty in these refusals, the plaintiff being given at no time an opportunity to make proof of his claim as required by paragraph 5292, Revised Statutes of 1913 (Civil Code); that with the intent to defraud this plaintiff out of said lot the defendant Smith prior to December 29, 1923, wilfully and dishonestly, knowing the same to be false, represented to said Heiner, as agent of the town site trustee, that plaintiff was an alien, ineligible to receive the title to said lot from the said [39 Ariz. 340] trustee and hold it; that she made oral claim only to the lot knowing she was not then an occupant or in possession thereof and had never been but that plaintiff at the time and for years prior thereto had occupied and been in actual possession of it.
The defendant demurred to this pleading upon several grounds, one of which was that it appeared upon its face that the cause of action therein alleged was barred by the provisions of paragraph 695, Revised Statutes of 1913 (Civil Code), in that it disclosed that the defendant Smith had been in peaceful and adverse possession of the north 50 feet of said lot four, under title or color of title for more than three years next preceding the commencement of the suit on December 11, 1928, and, hence, that the cause of action had accrued more than three years prior to that date. This demurrer was sustained and judgment for the defendant followed, the plaintiff having announced that he would not amend further but would stand upon his amended complaint. It is from this judgment that the appeal is prosecuted.
The only assignment is that the court erred in sustaining the demurrer to the amended complaint and in rendering judgment for the defendant. This assignment is based upon the contention that the three-year statute of limitations does not apply for the reason that the trustee's deed to defendant Smith is void, not voidable, and, therefore, constitutes neither title nor color of title within
the meaning of this limitation statute which reads as follows:
"695. Every suit to be instituted to recover real property as against any person in peaceable and adverse possession thereof under title or color of title, shall be instituted within three years next after the ...