APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge.
Mr. Wm. P. Lufty and Mr. Herbert Watson, for Appellant.
Messrs. Jennings and Tenney, for Appellee.
McAlister, C. J. Ross and Stanford, JJ., concur.
McAlister, C. J.
[62 Ariz. 116] Howard Gentry brought an action to quiet the title in himself to lot 4, Sparks tract, according to the records in the office of the county recorder of Maricopa County. The defendant, Bessie Parker, answered, denying that plaintiff was the owner of said property and alleged that she owned the fee simple title to it, and that any claim on the part of plaintiff, Howard Gentry, was inferior and subordinate to hers and prayed for a decree quieting the title to said property in herself.
The plaintiff based his claim to it upon a deed dated October 1, 1941, given by Bessie Parker to him, and the defendant based her claim to the property upon a later deed, acknowledged by Howard Gentry on July 17, 1942, at Prescott, and mailed to her in Phoenix from that point. The evidence shows that Bessie Parker first obtained title to it in 1929, from one Lee Comer; that she mortgaged it to the Home Owners Loan Corporation in 1933, and made the payments on the mortgage; and that there is still due thereon around $ 1500.
On July 1, 1942, Howard Gentry had gone to the Veterans' Hospital at Whipple Barracks in Prescott for an operation. He was suffering from a broken appendix and blood poisoning. It appears that his physician told him that his recovery was very doubtful, though after many days he did get over it. Some days following the operation the defendant, accompanied by Mary Bess Parker, went to the hospital to see Mr. Gentry. Mary Bess Parker was the daughter of Mrs. Parker's husband by a former wife and according to plaintiff he had promised the child's [62 Ariz. 117] father, at the time of his death, he would take care of the little girl who was then a very small child. While at the hospital, notwithstanding
his serious condition, they discussed the ownership of lot 4, Sparks tract, and according to the testimony of the plaintiff the following was said in the conversation:
". . . there was also brought up the subject of Lot Four of the Sparks Tract, which this argument is over, and I suggested -- she asked about that, and I suggested that she go to work and have this deed made out and in the event that I die that she could record that; otherwise, then she could give this back; and she agreed to that. She went to Mr. Langmade and had the two deeds made out that way, and they came up, and there was also a letter at the time she sent these. She went back to Phoenix in the meantime after we talked this over. She was there maybe a couple or three days, and we talked this over and finally decided that was the thing to do, so she went back and got these two deeds made by Mr. Langmade and sent them up and I signed it; and there was also a letter accompanying these deeds, and she stated in there -- and she stated in there, 'I am sending you the two deeds. You can do as you like, but in the event that you sign the deed to Lot Four,' the tract that is involved in this lawsuit, 'the deed will be kept and not recorded until after your death.'"
The two deeds referred to in this testimony were, one covering a piece of property owned by the plaintiff on East Van Buren Street, which he deeded to Mrs. Parker so that she could sell it and raise money to pay off for him some expenses that he had incurred in connection with running the home, that deed was recorded by her promptly as Mr. Gentry advised; the other deed was the one covering lot 4, Sparks tract, which he signed and forwarded to her with the understanding that she would not record it unless his sickness resulted fatally, and that she would return it to him in case he recovered. However, she did record [62 Ariz. 118] it on November 16, 1942, some months after his recovery.
Gentry testified that the letter Mrs. Parker sent up with these two deeds he kept in his files in the hospital until he returned home when he put it in a letter file in a steel cabinet in his room. But this file was unlocked and the letter, along with a number of other valuable papers, including checks and everything pertaining to lot ...