APPEAL from a judgment of the Superior Court of the County of Maricopa. John P. Clark, Judge. Judgment reversed and case remanded with instructions.
Mr. Elmer Graham and Mr. V. L. Hash, for Appellant.
Mr. John W. Ray, for Appellees.
[57 Ariz. 42] McALISTER, J.
This is an action by John C. Lee and wife against Carre Burney to gain possession of Lot 1, Section 19, Township 3 N., Range 3 E.,G. & S.R.B. & M. located in Maricopa County. They allege that they are the owners of this property in fee [57 Ariz. 43] simple and that defendant has kept them out of possession thereof without compensation since May 24, 1938, to their damage in the sum of $75 per month for its use and occupation since that time.
The answer denies that plaintiffs are the owners or entitled to the possession of the premises or that she has unlawfully kept them out of possession, and alleges that on June 1, 1937, she bought the property from one Alice Luther under a contract of purchase which was that day placed of record in the office of the county recorder of Maricopa County and that she has since been in lawful possession thereof.
On February 5, 1940, the day of the hearing, plaintiffs filed a motion asking that a writ of assistance issue directing the sheriff of Maricopa County to enter upon the property in question, eject therefrom the defendant, and place plaintiffs in the peaceable possession thereof. This motion was granted the following day and it is this order as well as the one denying her motion for a new trial that the defendant has brought here for review.
In granting the writ of assistance the court acted solely upon the record of two former decisions of the superior court of Maricopa County, causes No. 44643 and No. 46685. An examination of the record in these cases discloses that on September 6, 1934, M. E. Miller and Bessie L. Miller, his wife, being then the owners of the property in question, sold and deeded it to Roy Hodson and three others and that on March 30, 1936, they conveyed it to Alice Luther, a widow, and stepdaughter of M. E. Miller; that on June 1, 1937, Alice Luther and the defendant, Burney, entered into a contract by which the former agreed to sell and the latter to purchase it for $6,500; that Burney then paid $300 of this amount and went into possession, the balance to be satisfied in monthly installments of $100.
[57 Ariz. 44] On April 14, 1937, about six weeks before Luther sold the property to Burney, John C. Lee brought an action in the superior court of Maricopa County against M. E. Miller and Bessie L. Miller, cause No. 44643, to recover around $5,000 for money loaned and attorney's fees, both of which were past due, and at the same time caused a writ of attachment to be issued and levied on the premises in question as the property of M. E. Miller and wife. On February 26, 1938, the court rendered judgment in that cause for the plaintiff in the sum of $4,735.86, plus interest, and ordered the attachment lien foreclosed and the property sold to satisfy the judgment. At the sheriff's sale on May 24, thereafter, Lee purchased the property and immediately afterwards notified Burney that he was the owner and demanded rent from her, but she refused upon the ground that she had bought the property under a contract of purchase from Alice Luther and was in lawful possession. Some time after the redemption period expired a sheriff's deed was delivered to Lee upon his payment of $453.86 in taxes then due on the property for five and one-half years, beginning with the year 1934.
After Lee recovered judgment in cause No. 44643 against the Millers and the property had been sold pursuant to the order foreclosing the attachment lien, Burney declined to make further payments on the purchase price because she feared that Luther would not be able to furnish her a good title, so on October 8, 1938, Luther brought an action against Lee in the superior court of Maricopa County, cause No. 46685, asking that she be awarded $5,000 damages for his unlawful interference with her property in causing a writ of attachment to be issued and levied thereon and in procuring a foreclosure of the attachment lien and the sale of the property as that of the Millers.
[57 Ariz. 45] Lee answered with a cross-complaint in which he alleged that he purchased the property on May 24, 1938, at sheriff's sale, was the owner thereof subject to the right of redemption, and that the cross-defendant, Alice Luther, made some claim adverse to him but upon information and belief he alleged that she had no interest of any character in the property though she made a claim thereto for Bessie L. Miller, her mother, and M. E. Miller, her father by marriage, who were the judgment debtors in the judgment upon which the sheriff's sale was made. His prayer was that his estate in the property be established and that Luther be forever estopped from claiming any right or title adverse to his. Six months later Lee filed an answer in which he alleged in substance that through an agreement with Hodson and the other owners
the Millers repurchased the property from them but that they had it deeded to Alice Luther instead of to them to defeat a judgment that had been theretofore rendered against them by the superior court and affirmed by this court, and, also, to hinder and delay the payment of the amount they owed the defendant, then in excess of $5,000; that Luther paid no consideration for the property; that the Millers ...