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Eckert v. Miller

Supreme Court of Arizona

March 10, 1941

JOSEPH ECKERT and ALBERT J. STORCH, Appellants,
v.
R. L. MILLER, Appellee

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.

Messrs. Favour, Baker & Crawford and Mr. T. J. Byrne, for Appellants.

Messrs. O'Sullivan & Morgan, for Appellee.

OPINION

Page 61

[57 Ariz. 95] ROSS, J.

This is an action by R. L. Miller against Olive Wheeler and Albert J. Storch, copartners, and Joseph Eckert, to have the defendants declared trustees ex maleficio of a tax title to Lots 5, 6, 7, 11 and 12 in Block 8 of the Townsite of Ash Fork, Yavapai County, Arizona, and to recover rent for Lot 11 and the east seven feet of Lot 12 from tenants Wheeler and Storch.

The complaint alleges, in substance, that said tax title was procured by defendants Wheeler and Storch in violation of the fiduciary relation existing between landlord and tenant, and through wrongful refusal to [57 Ariz. 96] pay plaintiff his rent, with which he would have been able to redeem his property from a tax sale before it was deeded to defendants; that defendant Joseph Eckert, an employee of the Bank of Arizona, bought the certificate of purchase from the state and procured a tax title from the county treasurer in his name through an arrangement by Storch with the bank, and that he was merely a dummy of Storch; that plaintiff, soon after learning that Storch had procured tax deed for his property, as above stated, tendered Eckert $360 to cover the $351.63 he had paid on behalf

Page 62

of his principals for tax title and other expenditures connected therewith, and tendered to him a quitclaim deed for reconveyance of the property to plaintiff. Such offer was renewed at the time of filing the complaint and upon refusal was paid into court as a continuing tender.

The court, after taking the evidence, in which there appears no material conflicts, made findings of fact and gave judgment to plaintiff quieting his title; also directing Eckert to convey the premises to plaintiff, upon the satisfaction of the bank's loan and interest at 8 per cent per annum; and also gave judgment against Wheeler and Storch for rent of the premises from May 11, 1938.

The appeal is by Albert J. Storch and Joseph Eckert. Olive Wheeler, a partner of Storch, does not appear as an appellant for the reason, as will appear hereafter, that she had no part in procuring tax title and did not approve thereof.

The appellants contend the judgment is not supported either by the law or the evidence. We state the facts as found by the court, supplementing them where material omissions occur: The bank's only interest in the transaction is as a lender of money, and it was at the instance and procurement of Storch that [57 Ariz. 97] it advanced the money to buy the tax title. It knew nothing at the time of the devious conduct of Storch.

Plaintiff was the owner of said lots and had been since 1931. Like many other property owners, he had not kept the taxes paid, probably because of his inability to do so. According to the record, he is a laboring man with four motherless children to support.

In 1932 the county treasurer of Yavapai County sold said lots to the State of Arizona and issued to it a certificate of purchase for the delinquent taxes of 1931. This certificate was assigned by the county treasurer to defendant Eckert on or about July 18, 1938. On May 23 and 30, 1938, according to recitals in the tax deed, the county treasurer published notice, as required by law, Sections 73-835, 73-836, 73-837, Arizona Code 1939, that an application for a treasurer's deed to said lots had been made by Joseph Eckert and that unless redemption be had before June 28, 1938, the deed would issue to him. The statement in the deed that Eckert had made application for deed is not true in fact for he did ...


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