CHARLES S. WALLACE, Appellant,
FIRST NATIONAL BANK OF ARIZONA AT PHOENIX, a corporation, and DWIGHT B. HEARD INVESTMENT COMPANY, a Corporation, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Judgment affirmed.
Mr. L. J. Cox, for Appellants.
Messrs. Armstrong, Kramer, Morrison & Roche, for Appellee Bank.
This action was commenced by the First National Bank of Arizona at Phoenix on the past-due promissory note of the Dwight B. Heard Investment Company dated February 23, 1927, and to foreclose a [39 Ariz. 452] mortgage of even date on an undivided one-half of lot 1, block 66, Original Townsite of Phoenix, Maricopa county, Arizona given to secure the note. In addition to the mortgagor, C. S. Cousins and Charles S. Wallace were made parties defendant because of some adverse claim, right or title being asserted by them to the premises. Cousins made no appearance. Wallace, answering the complaint, set up title in himself and denied that the mortgagor investment company had any right, title or interest in the mortgaged premises. He also filed a cross-action to quiet his title to the premises.
The case was tried before a jury, but after the evidence was all in the court decided that there were no disputed issues of fact, discharged the jury, and rendered judgment in favor of the bank against the investment company as prayed and quieted title in the investment company as against Wallace. Wallace has appealed. While it is very doubtful whether any of his assignments conform to the rules of the court, we have concluded to examine the points raised by him and to base our decision upon the merits of the case.
A history of the case is indispensable to an understanding of the contentions of the parties and also their rights. The investment company and Wallace claim title from a common source, to wit, Lincoln Fowler. On July 1, 1909, said lot 1 was deeded to Ada Irvin and Lincoln Fowler and, according to the records of deeds of Maricopa county, these grantees remained the owners thereof as long as they lived. On February 16, 1925, defendant Wallace became the owner, through an order of the probate court, of Ada Irvin's undivided one-half interest, and the investment company, on January 24, 1927, became the owner, by purchase from the heirs and/or devisees of Lincoln Fowler, of the Fowler undivided one-half interest.
[39 Ariz. 453] Wallace claims that, although the record title to one-half of said lot was in Fowler all this time, the whole title was in fact in Ada Irvin from December 7, 1909. He testified to seeing in the possession of Ada Irvin a warranty deed of that date from Fowler to her of his undivided one-half interest. Ada Irvin died May 12, 1923, and this witness claims to have seen the deed in her possession as late as May 8th. That there was such a deed in existence is not disputed, but why it was given, or why it was never placed of record, or what became of it, is not shown, except that it was missing from the papers of Ada Irvin after her death.
Wallace was named by Irvin in her will as executor thereof, as also the residuary legatee of her estate. He was in addition a brother of deceased and her sole heir at law. As executor he took possession of his sister's estate and proceeded to and did administer it during the lifetime of Lincoln Fowler. An inventory and appraisement of the Irvin estate was made and returned to the court on August 31, 1923. In this inventory as an asset of the estate was included only an undivided one-half of lot 1, block 66. The Fowler one-half of said lot was not inventoried as an asset of the Irvin estate. The inventory did,
however, contain this item: "Claim against Lincoln Fowler of Phoenix, Arizona (problematical value -- estimated), $17,500.00." On the day the inventory was filed Wallace, as the executor, filed his petition in the court asking that he be authorized to compromise and settle the claim against Fowler upon the terms and conditions therein set forth. The court, considering said petition, on the same day authorized and directed the executor to make the compromise and settlement with Fowler proposed in his petition. This he did on the same day and gave to Lincoln Fowler the following receipt and release:
[39 Ariz. 454] "Release.
"Know all men by these presents: That I, Charles S. Wallace, Executor of the Estate of and residuary legatee and devisee under the will of Ada Irvin, Deceased, and as heir at law of Ada Irvin, Deceased, for and in consideration of the sum of $15,153.92, to me paid by Lincoln Fowler . . . do hereby . . . remise, release and forever discharge Lincoln Fowler, his heirs, executors and administrators from all (any) and all manner of actions, causes of action, suits, debts, dues, accounts, covenants, contracts, agreements, judgments, claims and demands whatsoever, in law or in equity, which the Estate of Ada Irvin, Deceased, ever had, now has, or which it hereafter can, shall, or may have against the said Lincoln Fowler, for or by reason of any cause, matter or thing whatsoever from the beginning of the world to the date of these presents, and more particularly arising out of any transactions between the said Ada Irvin and the said Lincoln Fowler in connection with any lands consisting of either city property or farm lands and all other property situate in Maricopa County, Arizona, including the Northwest Quarter of Section 36, Township 1 South, Range 5 East, G. & S.R.B. & M., and an undivided one-half interest in and to Lot 1, Block 66, Phoenix, Maricopa County, Arizona.
"In witness whereof, I, Charles S. Wallace, Executor of the Estate of and residuary legatee and devisee under the will of Ada Irvin, Deceased, and as heir at law of Ada Irvin, Deceased, have ...