APPEAL from a judgment of the Superior Court of the County of Cochise. John Wilson Ross, Judge. Judgment reversed and cause remanded with instructions to dismiss the action.
Mr. Frank E. Thomas, for Appellants.
Mr. C. O. Anderson, Mr. J. T. Kingsbury, for Appellee.
[52 Ariz. 361] LOCKWOOD,
J. M. Brimson, hereinafter called plaintiff, brought this suit against Nellie Hoig Smith, whom we shall hereinafter call defendant, and Pierre Getzwiller, for the partition of certain real estate situate in Cochise county which plaintiff claims by his third amended complaint, which was filed after the case was tried on the merits for the purpose of avoiding a variance between the proof and the pleading, was held by him and defendant as tenants in common. Getzwiller was joined merely because defendant had made a lease to him of the premises, and his interest therein depends upon a determination of the respective interests of plaintiff and defendant. Defendant answered with a general and specific denial, which put in issue all of the allegations of the complaint, with one exception not material to this opinion. Judgment was rendered, finding that plaintiff and defendant were tenants in common of the property in litigation, and canceling the lease under which Getzwiller claimed, so far as the undivided one-half of the premises adjudged to the plaintiff was concerned, but making no order regarding a partition. From this judgment, defendant and Getzwiller have appealed.
The record shows the following state of facts: Plaintiff and defendant were married at Salem, Oregon, during the year 1912, and shortly thereafter moved to California, where they lived together as husband and wife. On the 23d day of April, 1917, defendant secured an interlocutory decree of divorce from plaintiff, [52 Ariz. 362] on the grounds of non-support, which decree became final in April, 1918. The decree specifically found that there was no community property belonging to plaintiff and defendant. Thereafter defendant married one Hoig in California, but lived with him only for a few months. The record is silent as to whether she was ever divorced from Hoig or not, but at all events she never remarried plaintiff. The evidence showed that there was certain property in California which stood in the name of defendant at the time of her divorce. It also showed that after the divorce plaintiff engaged in various real estate transactions, the upshot of which was that certain property was acquired by him amounting to eight acres, which was called the Burr property, but that this property was put in the name of defendant. In 1924 the parties removed to Cochise county,
and the premises in question were purchased from one Moranda. the title being taken in plaintiff as trustee. The Burr property and the other property in the name of defendant, together with certain other equities which were apparently in the name of plaintiff, represented the consideration for the property in litigation herein. Two days later plaintiff executed an unconditional warranty deed to the premises to defendant, signing the same as trustee, and the legal title to the premises has ever since been in the latter.
It was the contention of plaintiff, as set forth in his third amended complaint, that at the time of the dissolution of the marriage in California, all of the property there, most of which stood in the name of defendant, was in reality community property, and that by reason of the divorce and the failure of such divorce to adjudicate the community rights therein, he and defendant became tenants in common thereof; that the California property was traded to Moranda as part of the consideration for the premises in controversy, [52 Ariz. 363] and that it was orally understood and agreed at all times that he and defendant should be tenants in common of the property so purchased.
It was the position of defendant, on the other hand, that the California property was her separate, and not community, property; that when plaintiff was named as trustee in the deed from Moranda, she was the beneficiary under said trust deed, and that the execution of the deed to her executed the trust.
Plaintiff was examined as to how it happened that the California property, which was the consideration for the purchase of the Arizona property, happened to stand in the name of defendant, and testified as follows:
"Q. Now, that Burr property, in California, being of the value of $16,000, that you acquired since your divorce, whose name was that put in? A. In her name.
"Q. Why? A. Because I was going to have a lawsuit up with a man by the name of Joe Dutro and she said that she was afraid I would lose that suit and they would attach this ...