APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.
Mr. F. L. Zimmerman, for Appellant.
Messrs. Marks & Marks, for Appellees.
[40 Ariz. 428] LOCKWOOD, J.
Mollie Varnes, hereinafter called decedent, died intestate in 1927, leaving surviving her Lewis Varnes, her husband, and Ella S. White and Steven Henderson, her daughter and son, respectively, by previous marriages. The latter two were over the age of twenty-one years, and are hereinafter called defendants. There was no issue of her marriage with Varnes. Probate proceedings of the estate of decedent were had in due form, Lewis Varnes acting as the administrator. The only property inventoried was lots 5 and 6, block 21 of Collins addition in the city of Phoenix, which were appraised at the sum of $2,000. In July, 1928, the administrator filed his final account and petition for distribution, and the [40 Ariz. 429] superior court upon such petition decreed an undivided one-half of the property in question to Lewis Varnes and an undivided one-fourth each to defendants herein. On November 6, 1930, the administrator was discharged, and no appeal has ever been taken from any of the probate proceedings.
On March 14th, 1931, Lewis Varnes, who had remarried, deeded all of the above-described property to Anna Varnes, his then wife, hereinafter called plaintiff, the consideration being love and affection. The deed is in form a warranty, and after describing the property states:
"The said premises are and/or were the community property of myself and Mollie Varnes my deceased wife, who was a widow when I married her and whose name then was Mollie Henderson, and who had two children by Henderson and a former husband, whose names now are Steven Henderson, aged about 47 years, and Ella S. White, aged about 49 years; the said two children being my stepchildren."
On April 1, 1931, plaintiff brought suit to quiet her title in and to all of said lots 5 and 6. Defendants answered with a general denial and then set up in a cross-complaint the death of their mother, the community character of the property involved, and the decree of distribution hereinbefore referred to, asking that their title be quieted to the one-fourth interest respectively assigned to them by such decree.
The matter was heard before the trial court sitting without a jury, and judgment was rendered quieting the title in accordance with the provisions of the decree of distribution, and from this judgment this appeal has been taken.
There are three assignments of error under which plaintiff contends that as a matter of law: First, defendants, on the facts as above stated, had no estate of inheritance from their mother Mollie Varnes in said property, and, second, the decree of distribution [40 Ariz. 430] above referred to was void because Lewis Varnes was entitled to have distributed to him under chapter 5, title 6, Revised Statutes of Arizona of 1913, Civil Code, all of said property as a homestead.
Defendants insist that the decree of distribution
followed the law, and in addition thereto urge that even if it did not, this proceeding, in so far as it attempts to have plaintiff's title to the interest distributed by such decree to defendants quieted in her, is a collateral attack upon the judgment of a court of competent jurisdiction.
The case presents several interesting points of law, some of which have never been specifically passed upon in this or indeed, so far as we can ascertain, in any other jurisdiction, but we think the matter can and should be determined upon the question of whether or not the decree of distribution entered by the probate court may be successfully attacked in this proceeding. It is, of course, the general rule of law that a judgment rendered by a court of competent jurisdiction is not open to contradiction or impeachment by the parties thereto or their privies in respect to its validity, verity or binding effect, in any collateral action or proceeding, except for fraud, and that even though it be so irregular and defective that it would be set aside or annulled on a proper application for that purpose, it is not subject to collateral impeachment so long as it stands ...