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Conway v. Mosher

Supreme Court of Arizona

April 15, 1940

E. POWER CONWAY, Appellant,
v.
HATTIE L. MOSHER, a Widow; COIT I. HUGHES and HATTRUDE B. HUGHES, Wife of COIT I. HUGHES, Appellees

APPEAL from a judgment of the Superior Court of the County of Maricopa. Wm. G. Hall, Judge. Judgment affirmed.

Messrs. Gust, Rosenfeld, Divelbess, Robinette & Coolidge, for Appellant.

Mr. E. E. Selden, for Appellees.

OPINION

Page 210

[55 Ariz. 309] ROSS, C.J.

This is an action by plaintiff, E. Power Conway, claiming to be the owner of lots 6 and 7, block 14, East Evergreen Addition to the City of Phoenix, Maricopa county, to have a tax deed thereof issued by the county treasurer to Coit I. Hughes declared invalid and to have plaintiff's title to said lots declared free and clear of all encumbrances, except as to any lien thereon held by defendants on account of taxes paid for tax deed and tax liens in favor of the state for state and county taxes. As to these taxes and tax liens, plaintiff offers to pay them when the amount is determined by the court.

In a trial without a jury, judgment went for defendants and plaintiff has appealed, assigning several reasons why such judgment should be reversed and his prayer granted. His first point is that in another proceeding between the same parties concerning the title to lots 6 and 7, it was determined, in effect, that Hughes had no title but only liens for the taxes he had paid for tax deed. The facts relied upon to support this proposition are not in dispute and are stated as follows:

On November 20, 1935, the plaintiff became the owner of said lots by purchase at a sale thereof to [55 Ariz. 310] satisfy paving improvement liens assessed against them, and received a deed for each lot from the city treasurer of the city of Phoenix.

On February 8, 1936, plaintiff Conway brought an action against the former owner, Hattie L. Mosher, and a number of her creditors, including Coit I. Hughes and his wife Hattrude B. Hughes, Maricopa county, and the city of Phoenix, to quiet his title to the lots. Mosher, Coit I. Hughes and his wife joined in an answer denying that plaintiff was the owner of the lots and alleging the owner to be Hattie L. Mosher. Maricopa county in its answer set forth that the county and state taxes on the lots were delinquent for the years 1927 to and including 1935; that in July, 1932, the county treasurer sold the lots to the state for the taxes for the years 1927 to 1930, both inclusive, and issued to the state, the buyer. certificates of purchase.

On December 22, 1936, the court rendered its judgment quieting plaintiff's title against all of the defendants except Maricopa county and the city of Phoenix. As to Maricopa county, it was decreed that it has "a lien for unpaid taxes against the above described property, as follows:" (Here are enumerated the taxes for 1931, 1932, 1933, 1934, 1935 and 1936.) No mention is made in the judgment of tax certificates or tax liens for the years 1927-1930.

On August 20, 1937, defendant Coit I. Hughes bought an assignment from the state of Arizona of its certificate of purchase

Page 211

of lot 7, and on August 27, 1937, he bought an assignment of its certificate of purchase for lot 6 from the state, and thereafter, on February 23, 1938, he received from the county treasurer a tax deed of said lots.

Thus it is seen that whatever title Hughes has to the lots he obtained by virtue of the tax deed dated February 23, 1938. Plaintiff claims that such title [55 Ariz. 311] is not good for several reasons, the first being that the judgment in the action to quiet title between Conway and Mosher (see Mosher v. Conway,51 Ariz. 275, 76 P.2d 231) conclusively adjudicated that the two certificates of purchase issued to the state by the county treasurer for taxes for the years 1927-1930, upon which the defendant's tax deed was issued, were void and of no effect. The basis for this claim is that Maricopa county in the action to quiet title submitted to the court in its answer the validity of the two tax certificates upon which defendant depends for his title along with the claim of tax ...


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