APPEAL from a judgment of the Superior Court of the County of Yuma. Henry C. Kelly, Judge. Judgment affirmed.
Mr. Joe L. Green, for Appellants.
Mr. William H. Westover, for Appellee.
[60 Ariz. 302] ROSS, J.
This is an action for rent under a written lease dated November 22, 1938, from Lilah B. Sanguinetti to Raymond and Lillian Quon, of Lots 14 and 15, Block 11, Townsite of Gadsden, Yuma County, Arizona, and the fixtures of the store building situated on said lots, for the term of five years from November 20, 1938 at the stipulated rental of $40 per month.
The Quons paid the rent to the lessor and her successor in interest Eugene F. Sanguinetti up to and including the month of February, 1941, and $23.58 to be applied on the rent for the month of March, 1941. Since said payments they have refused to pay rent and this action was commenced October 30, 1941 for the stipulated rent for the balance of the term, basing the right to recover upon this language in the lease:
"Should any payment not be made as herein agreed, the party of the first part (lessor) may declare the entire amount of rent due on demand."
[60 Ariz. 303] The defendants, the Quons, did not deny the truthfulness of the allegations of the complaint but set up as a defense that said premises were, on January 20, 1941, sold by the State of Arizona at a tax sale to Raymond Quon, Jr., their infant son, who, they allege, evicted them and compelled them to recognize him as owner of the premises and consequently their landlord.
The trial was had before the court without a jury and resulted in a judgment in favor of plaintiff for the balance of the rent due under the lease, to wit, $1,256.42. From this judgment the defendants appealed.
There is no question about the facts. We think it may be stated as the universal law that a tenant who enters upon premises under a lease may not question his landlord's title as long as he has not been evicted therefrom. That rule has been recognized and followed in this jurisdiction in the following cases: Lynch v. Clark, 20 Ariz. 261, 179 P. 960; Clark v. Holcomb, 31 Ariz. 378, 253 P. 897; Gibbs v. Basham, 53 Ariz. 357, 89 P.2d 630; Eckert v. Miller, 57 Ariz. 94, 111 P.2d 60. Besides, this is the statutory rule. Section 71-301, Arizona Code 1939, reads, in part:
to deny title -- Liability of person in possession. -- When a person enters into the possession of real property under a lease, he shall not while so in possession deny the title of his landlord in an action brought upon such lease by such landlord, or a person claiming under him...."
The facts are that defendants, while in possession of the premises as tenants of the Sanguinettis, bought a tax title thereof from the state, which was taken, not in their names but in the name of their infant son. The evidence is that they, and not the son, paid the consideration for such title and such was the court's finding. These facts show that defendants were not in a position at any time to assert and prove ownership ...