APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.
Messrs. Marks & Marks, for Appellant.
Mr. V. L. Hash, for Appellees.
[40 Ariz. 92] LOCKWOOD, J.
Maricopa Laundry Company, a corporation, hereinafter called plaintiff, brought suit against J. E. Levandoski and Margaret L. Levandoski, his wife, hereinafter called defendants, to enforce specific performance of an option of sale contained in a lease given by defendant J. E. Levandoski to plaintiff. Defendants demurred to the complaint on the ground that it failed to state a cause of action, which demurrer was sustained, and plaintiff declining to amend, the complaint was dismissed, and this action of the lower court is before us for review.
There is but one question involved in the appeal, and that is whether the complaint stated a cause of action. There are a number of points in which defendants insist it was fatally defective, but we think we need consider only one of these. The complaint, after the usual formal matters, alleges that plaintiff and defendant J. E. Levandoski entered into a certain written agreement of lease of lots 13, 14, 15 and 16 of block 43, Montgomery addition to the city of Phoenix. The lease was for the period of five years, and in addition to the usual features found in such a document, contained the following clause:
"Parties of the second part has the right to buy this property at any time during the life of this lease at a cost of $7000.00 -- If any improvements are made in streets -- allys or ditches same to be added to cost of same and paid by parties of the second part. If parties of second part should buy property then this lease is cancelled."
The complaint then sets up that plaintiff, within the time set forth in the lease, offered to purchase [40 Ariz. 93] the property, but that defendants refused to convey, and continues as follows:
"Plaintiff further alleges that it has erected valuable improvements on said premises with the knowledge and consent of the defendants, and has paid all taxes on all of said improvements as they were required to do by said defendants;
"Plaintiff further alleges in this behalf that said real estate belongs to the community composed of the defendants herein as husband and wife, that said defendant, Margaret L. Levandoski, has at all times known of the agreement between plaintiff and her husband, J. E. Levandoski, and she has accepted the benefits and fruits thereof, and she is now estopped from declining to join in a deed to plaintiff in accordance with said option. . . ."
It appears from the complaint that the property leased was the community real estate of the two defendants, but that the lease was signed only by the husband. Under the provisions of paragraph 2061, Revised Statutes of 1913 (Civil Code), in force when the lease in question was executed, such a lease is invalid. Hood v. Fletcher, 31 Ariz. 456, 254 P. 223. This general rule is not denied by plaintiff, but it contends that under the allegations of
the complaint above set forth the defendants are estopped from raising the question.
We have had the question of the nature and extent of the doctrine of estoppel as against the assertion of the invalidity of an encumbrance of community realty not signed by the wife before us in the two comparatively recent cases of Hall v. Weatherford,32 Ariz. 370, 56 A.L.R. 903, 259 P. 282, and R ...