WILLIAM ALBERTS, State Land Commissioner of the State of Arizona, R. C. STANFORD, JAMES H. KERBY, HARRY M. MOORE, ANA FROHMILLER, and JOSEPH W. CONWAY, Constituting the State Land Department of the State of Arizona, and SEVENTY-SIX CATTLE COMPANY, a Corporation (Intervener), Appellants,
W. H. McGIRK, ELLA E. McGIRK, ORA A. McGIRK and GORDON B. McGIRK, Appellees
APPEAL from a judgment of the Superior Court of the County Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General, and Mr. Elmer C. Coker, Assistant Attorney General, for Appellant Land Department and Commissioner.
Messrs. Mathews & Bilby and Mr. T. K. Shoenhair, for Appellant Intervener.
Mr. D. V. Mulhern, Mr. B. H. Gibbs and Mr. D. L. Cunningham, for Appellees.
[51 Ariz. 512] LOCKWOOD, J.
This is an appeal by the state land commissioner and the state land department, hereinafter called defendants, from a judgment of the superior court of Maricopa county granting a peremptory writ of mandamus commanding them to issue certificates of purchase for certain lands owned by the state of Arizona, in favor of W. H. McGirk, Ella E. McGirk, Ora A. McGirk, and Gordon B. McGirk, hereinafter called plaintiffs. The Seventy-Six Cattle Company, a corporation, hereinafter called intervener, intervened in the trial court and has joined in the appeal.
The action arose out of the following state of facts: The lands involved herein, being all of section 2, lots 5, 6, 7, and 8, and the south half of the north half, and the south half of section 3, and the east half of section 4, township 10 south, range 22 east, Gila and Salt River Base and Meridian, were selected by the state of Arizona and conveyed to the state by the United States in the year 1915 or 1916 under grants of the Enabling Act. The whole of the lands are non-mineral and non-timbered grazing lands of such a character that they may be sold by the state of Arizona to private purchasers. About the 6th day of December, 1927, one of the plaintiffs, W. H. McGirk, filed in the state land office an application to purchase a portion of said lands. These applications were not acted upon at that time in any way other than the accepting of the filing fee. On the 17th of September, 1935, the state land commissioner, Charles P. Mullen, wrote McGirk, referring to his application of 1927, stating that the [51 Ariz. 513] land department was contemplating holding a sale of state land in Graham county, and asking whether he was still interested in purchasing the land described in his application. McGirk immediately filed a further application to purchase the remaining part of the land hereinabove described. At this time, and at the time of the sale of the lands hereinafter referred to, the lands had been leased to the intervener for many years. Nothing was said in the application as to
whether or not the lands were at the time under lease to any other party, since the blanks furnished for applicants by the land department made no request for such information, but it was stated that there were certain improvements on a part of the lands consisting of a four-wire fence which belonged to the Chiracahua Ranches Company; this company having at the time under lease the west half of section 4. The leases of intervener were, of course, recorded in the land department, and the applications some time after their receipt were marked by the department, showing such leases. Shortly after the filing of the last application to purchase the land in question, the commissioner instructed his secretary to start the sale in Graham county, and to take whatever steps were necessary for that purpose. Thereafter, under such instructions, all the lands, and the fence which plaintiffs stated belonged to the Chiracahua Ranches Company, were examined on the ground and appraised in accordance with the law, and the report submitted to the commissioner. These appraisements showed that the land was under lese to the intervener, and that the fence in question was owned by the Chiracahua Ranches Company, and certified copies of these appraisements were mailed by the secretary of the commissioner to the Chiracahua Ranches Company and to the intervener. A notice to the public of the sale of the said lands was sent to the "Graham County [51 Ariz. 514] Guardian," at Safford, Arizona, and published therein. On the 12th day of February, 1936, a notice of the sale was sent by registered mail to the intervener, care William Webb, Bonita, Arizona, and on the 30th day of March a copy of the published notice of sale was sent to the same address, unregistered. The record does not show that either of these letters was returned to the department. On April 7th, in accordance with the notice of sale above referred to, the lands in question were offered for sale at Safford, Arizona, by the chief clerk of the department, and at such sale the plaintiffs were the highest bidders for the land in question and the one mile of fence, and thereupon paid to the land department all the sums required to be paid under their bids, and receipts were issued to them for the payments. This sale was duly reported to the commissioner. Upon April 7th the commissioner notified the county assessor of Graham county that the land had been sold to the plaintiffs and that it should be assessed to them for taxes, describing the land particularly, and on April 8th wrote to plaintiff W. H. McGirk, stating that he must secure a bill of sale for the fence from the owners, and on April 22d again wrote him inclosing certificates of purchase for the land, and requesting that he have them signed by the respective purchasers as required by law and returned to him for completion. This was done by the purchasers.
At some time before the 5th of May, 1936, but after the certificates of purchase had been sent by the land commissioner to the McGirks to be signed by them, W. T. Webb, who was then and had been for years president of intervener, went to the home of the commissioner, and there had a conversation with him in regard to the transaction. Immediately after this conversation, and under date of May 5, 1936, the commissioner wrote the following letter to W. H. McGirk:
[51 Ariz. 515] "Notice is hereby given that the certificates of purchase Nos. 5322, to 5326, Inc., issued to you on the 7th day of April, 1936, conveying Sections 2 and 3 and the E1/2 of Section 4, Township 10 South, Range 22 East, is hereby ordered for cancellation, for the reason and upon the grounds that the sale at which you purchased said lands was held by mistake and was therefore void and had no force or effect whatsoever. The mistake being that the improvements upon said lands should have been appraised in the name of W.T. Webb; Mr. W.T. Webb claims to have not known of the sale; it is not the policy of this office to break into a grazing set-up of another party, and for the further reason that the certificates of purchase, or any other instrument in this office is not finally complete until the signature of the Commissioner is attached thereto, which has not been done in this case.
"For these reasons I hereby declare that the purported sale was void and had no force or effect whatsoever, and I do, therefore, order that said certificate of purchase is hereby ordered for cancellation.
"Kindly return the original certificate of purchase so that the same may be placed upon the records of this office as cancelled and refund issued to you.
"You are advised that you have twenty days from the date of this order in which to appeal from said order to the State Land Department."
Thereafter plaintiffs filed with the state land department a document setting up in detail the facts in regard to the sale of the land which we have summarized, ...