THE BANK OF NORTHERN ARIZONA, a Corporation, Insolvent, JAMES B. BUTTON, as State Superintendent of Banks, and J. H. FROST, Special Deputy Superintendent of Banks, in Charge of THE BANK OF NORTHERN ARIZONA, a Corporation, Insolvent, Appellants,
MARION V. GIBBONS, as Administrator of the Estate of JOHN LEWIS, Deceased, Appellee
APPEAL from a judgment of the Superior Court of the County of Navajo. P. A. Sawyer, Judge. Judgment reversed and cause remanded, with directions to enter judgment for defendants.
Messrs. Favour & Baker and Mr. Don T. Udall, for Appellants.
Mr. Dodd L. Greer and Mr. Marion V. Gibbons, for Appellee.
[41 Ariz. 106] ROSS, J.
This action is one for the possession of real property and damages for its retention. The defendants are James B. Button, state superintendent of banks, and his deputy, J. H. Frost, who are alleged to be in possession of the property, claiming to own it. The plaintiff is the administrator of John Lewis, deceased. The case was tried before the court with a jury. There was no general verdict. The jury answered certain special interrogatories, some of which answers were adopted by the court in its findings of fact. The judgment entered was in part in favor of plaintiff, and defendants have appealed.
The testimony was not made a part of the record, the defendants contending that the judgment is contrary to the special verdicts of the jury and the findings of the court. The pleadings, the special verdicts, and the court's findings show the following facts: In 1919 the deceased, John Lewis, who was operating a store at Taylor, Navajo county, Arizona, applied to the Bank of Northern Arizona for financial assistance to prevent his creditors from closing him out. At the time he owned or held under a contract of purchase in the town of Taylor a few acres of land upon part of which was located his store building and upon another separate part his dwelling occupied by himself and family. He also owned 160 acres of land located at Pinedale, which we shall hereafter refer to as the Pinedale Ranch. On April 11, 1919, he signed and delivered the following instrument to the Bank of Northern Arizona:
"In consideration of the fact that you are coming to the rescue of my business, and saving a vexatious law-suit, and probable loss to the same, I will turn over, amicably, to your representative, Mr. James J. Shumway, the store (Cash Store) at Taylor, with [41 Ariz. 107] the mdse. now on hand, the cash in the tills, the ground adjacent, and the property upon which you have mortgage already; and will give you my assistance, and good-will in making the business pay for itself. With the distinct understanding that you, on your part, will credit every asset that I produce on my account at the Bank.
"The mdse. in stock is to be inventoried at the selling price, with a reduction of 25%.
"Very truly yours,
"[Signed] JOHN LEWIS.
"The 'ground adjacent' means all of the lot to the partition fence, and the lane to the ditch."
On April 11, 1919, Lewis's indebtedness amounted to approximately $16,000. He owed the Bank of Northern Arizona one note dated July 3, 1917, for $6,000, bearing interest at nine per cent., secured by mortgage on the Pinedale Ranch; one note dated February 5, 1918, for $2,583.87, unsecured; and one note dated February 5, 1918, for $2,550, unsecured; or all told $11,133.87. He owed Babbitt Brothers, Flagstaff, $4,000, who had sued and attached and taken possession of his real estate and the store and its contents at Taylor. He owed thirteen other wholesale houses approximately $1,800.
James J. Shumway, under the above authority, took possession of the store, the merchandise, and cash; also the real property in Taylor (except the dwelling-house and the ...