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Nickerson v. Arizona Consolidated Mining Company

Supreme Court of Arizona

November 20, 1939


APPEAL from a judgment of the Superior Court of the County of Yavapai. Levi S. Udall, Judge. Judgment affirmed.

Messrs. Struckmeyer & Flynn, and Mr. J. Bolivar Sumter, for Appellant.

Messrs. O'Sullivan & Morgan, for Appellees.


[54 Ariz. 352] McALISTER, J.

Vivian F. Nickerson commenced this action in June, 1936, but in January, 1938, amended her complaint by adding herself as the special administratrix of the estate of William Allen Nickerson, her husband, who had died late in 1937, as a party plaintiff. It was brought against the Arizona Consolidated Mining Company, three other corporations and five individuals, one of whom was L. K. Link, and its purpose was to quiet in her and the estate of [54 Ariz. 353] William Allen Nickerson title to four patented mining claims located in Yavapai county, Arizona, known as the Jessie group. From a judgment dismissing her complaint and quieting title to the claims in L. K. Link she appeals.

The substance of the complaint is that on or about November 25, 1927, the plaintiff and William Allen Nickerson acquired with community funds four patented mining claims situated in Yavapai county, Arizona, known as the Jessie group, together with improvements belonging thereto, and that on December 5, 1927, William Allen Nickerson, without the knowledge or consent of plaintiff, attempted by an instrument in writing, without her joining therein, to transfer the title to these claims to the Southwest Mines Development Company, one of the defendants herein; that on May 26, 1928, William Allen Nickerson caused to be delivered by the sheriff of Yavapai county to that corporation a deed purporting upon its face to convey to it this property; that this was done without the knowledge or consent of plaintiff and in violation of the community rights of both plaintiff and her husband in the property; that by reason of various mesne conveyances subsequent thereto title and right of possession to this property is claimed by one L. K. Link but that said claim is void and of no force, either at law or in equity.

It is further alleged that plaintiff did not discover the attempted transfer of this property until May 24, 1935, and that immediately upon learning of it she demanded of her

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husband, that he bring an action to have any and all clouds upon the property quieted in their community estate, but that he refused to do so; that plaintiff is informed and believes that the defendant, Arizona Consolidated Mining Company, a corporation, General Securities Company, a corporation, the Royal American Corporation, a corporation, Southwest Mines [54 Ariz. 354] Development Company, a corporation, R. O. Barrett, L. K. Link, E. C. Locklear, Fred Ford and L. B. LeBel claim some right, title and interest to the property but that such claim is without right because it is based upon the attempted transfer of title to said property by William Allen Nickerson to the Southwest Mines Development Company.

To this complaint the defendant, L. K. Lnk, filed two pleas in bar, an answer and a cross-complaint. The first plea in bar is based upon the three and five year limitation statutes. In the second he sets up facts which he alleges estops plaintiff from asserting an interest in the property, and in both the answer and cross-complaint, in the latter of which he seeks to have title to the property quieted in him, he again pleads, along with other matters, substantially the same facts, which in effect are these: That defendant has the title to the Jessie group which his predecessors in interest acquired through a sheriff's added dated May 26, 1928; that on, prior, and since that date plaintiff and her husband, being the owners of more than two-thirds of the outstanding stock of the Southwest Mines Development Company, have owned and controlled it, he being during this time the president and general manager of that corporation; that it took possession of the property in 1927 under a sheriff's certificate of sale purchased in the name of her husband, William Allen Nickerson, for and on its behalf, and that this certificate of sale was assigned to it; that following these transactions and during the years 1928 to 1933, inclusive, the plaintiff and her husband placed the Southwest in full possession of this property and held it out as belonging to that company; that during 1933 the Southwest sold the property to the Arizona Consolidated Mining Company, and that this latter corporation, which was also under the control of plaintiff and her husband, continued in ownership and possession [54 Ariz. 355] of the property, working and operating it; that plaintiff had full knowledge of all these facts and during this period made no claim of a community interest in the property; that defendant and his predecessors in interest invested large sums of money in the property and changed their position relative to it without any knowledge that plaintiff claimed any interest therein and without any objection on her part but rather with her knowledge and acquiescence.

The cross-defendant denied the allegations of the cross-complaint and particularly that she was estopped from asserting any interest in the property.

The evidence discloses these facts: The plaintiff and William Allen Nickerson were married in June, 1920, and the following summer located in Cherry, Yavapai county, Arizona, where Mr. Nickerson engaged in mining activities and acquired several mining claims. They lived in Cherry until 1925 when they moved to the Union property adjoining that composing the Jessie group then owned by the Ohio-Arizona Mining Company and located near Humboldt, and there remained until 1934. In May and June, 1926, plaintiff's husband performed work and labor upon the property of the Ohio-Arizona Mining Company at an agreed price of $900, that company being the owner of a number of unpatented mining claims as well as the Jessie group. He was not paid for this labor, so on June 4, 1927, he filed an action in assumpsit against that company and on the same day had an attachment issued and levied on its property, including the Jessie group. On October 22, 1927, judgment for the amount claimed, including orders foreclosing his attachment lien and directing the sale of the property to satisfy it, was rendered, and on November 25, following, the property was sold at public sale and bid in for $900 by the execution creditor, William Allen Nickerson. A certificate of sale under that date was delivered to him by [54 Ariz. 356] the sheriff and on December 3, 1927, a duplicate of it was filed in the office of the county recorder. Two days later, December 5, an assignment of the purchaser's right, title and interest in that certificate of sale to the Southwest Mines Development Company, which had been organized by William Allen Nickerson in 1923, was executed by the latter and filed and recorded in the office of the county recorder. The plaintiff did not join in that assignment. On May 26, 1928, pursuant to this assignment, the sheriff executed and delivered his deed conveying the property to the Southwest Mines Development Company. The plaintiff testified that she knew nothing about the assignment until October

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1, 1934, when her attorney, in a letter addressed to her at Newport Beach, California, where she was then residing, informed her of it. This communication was in reply to one from her in which she had manifested "considerable concern" about the property immediately following the receipt of a telegram from her husband. She was advised in the same letter that the situation was not so serious as she might picture it, since the judgment her husband secured against the Ohio-Arizona Mining Company was community ...

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