G. D. CARLEY, Appellant,
JOHN C. LEE and ELIZABETH LEE, His Wife, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment reversed.
Messrs. Perry, Silverthorne & Johnson, for Appellant.
Mr. John W. Ray, for Appellees.
[58 Ariz. 269] LOCKWOOD, C.J.
On November 30, 1936, M. E. Miller and Bessie L. Miller, his wife, were the owners of certain real property situate in Maricopa County. On that date they entered into an agreement of purchase and sale of the property with G. D. Carley, for the sum of $700, of which $300 was paid at the date of the agreement, and the balance was to be paid in monthly payments of not less than $15. A warranty deed for the property, together with a copy of the agreement, was placed in escrow with Arizona Title Guarantee and Trust Company. The following instrument was recorded in the office of the county recorder, in book 40 of Agreements, at page 520, on December 31, 1936:
"Memorandum of Agreement
"Know All Men by These Presents:
"That M. E. Miller and Bessie L. Miller, husband and wife, the parties of the first part, have agreed to sell, and G. D. Carley, a single man, the party of the second part, has agreed to purchase, the following described property: (Description follows) according to the terms and conditions of a certain agreement dated 30th day of November, 1936, held in escrow by the Arizona Title Guarantee and Trust Company.
[58 Ariz. 270] "In witness whereof, the said parties have hereunto set their hands and seals this 30th day of November, 1936.
"M. E. Miller
"Bessie L. Miller
"G. D. Carley."
On April 14, 1937, defendant John C. Lee, being a creditor of the Millers, attached the real estate that had theretofore been sold to plaintiff Carley. At that time plaintiff still owed the Millers $325.01 on the purchase price of the property. On February 25, 1938, Lee, as plaintiff in the attachment suit above referred to recovered a judgment against the Millers, and on May 24, the ...