THE VALLEY NATIONAL BANK OF PHOENIX, a National Banking Corporation, Executor of the Estate of Hester A. Battles, Deceased, Appellant,
FRANCIS J. BATTLES, Administrator of the Estate of Asa Battles, Deceased, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge.
Mr. D. P. Skousen and Mr. M. L. Ollerton, for Appellant.
Mr. Harold J. Janson, for Appellee.
Messrs. Lewkowitz & Wein, and Mr. Jacob C. Morgan, Amici Curiae.
Stanford, C. J. LaPrade and Morgan, J. J., concur.
Stanford, C. J.
[62 Ariz. 205] In this appeal we will call the appellee the plaintiff and the appellant the defendant as applied to them in the superior court.
The case was tried before the court without a jury.
Francis J. Battles, as the administrator of the estate of Asa Battles, deceased, his father, brought this action to have the SW 1/4 of sec. 24 and the NW 1/4 of sec. 25, T. 1 N., R. 4 W., containing 320 acres, situate in Maricopa County, Arizona, declared to be community property, and asked for an accounting by the defendant herein, the executor of the estate of Hester A. Battles, deceased. Hester A. Battles was the mother of plaintiff. The action also asked for damages in the sum of $ 5,000 for withholding from the rightful heirs and using the estate of Asa Battles from the date of his death to the date of the filing of the complaint.
Hester A. Battles in 1928 received a patent from the United States to the land in question under the desert land law. Asa Battles died intestate November 25, 1935, and his wife, Hester A. Battles, died testate February 24, 1942. It is undisputed that when the [62 Ariz. 206] final proof was submitted for the purpose of getting a patent Asa Battles and Hester A. Battles were jointly enjoying and using the land in question and that Asa Battles paid the expenses for the final proof and for the improvements on the land.
Defendant's answer stated that it did not know if the property was community or not and asked the plaintiff to make proof of same. Defendant also set up as defenses the statutes of limitation, Arizona Code Annotated 1939, as follows:
"29-101. Three-year limitation -- Terms defined. -- Every action instituted to recover real property as against any person in peaceable and adverse possession thereof under title or color of title, shall be instituted within three (3) years next after the cause of action has accrued and not afterward. By the term 'title' is meant a regular chain of transfer from or under the sovereignty of the soil, and by 'color of title' is meant a consecutive chain of such transfer down to such person in possession without being regular, as if one (1) or more of the memorials or muniments be not recorded or not duly recorded or be only in writing, or such like defect as may not extend to or include the want of intrinsic fairness and honesty, or when the party in possession shall hold the same by a land warrant or land script with a chain of transfer down to him in possession."
"29-102. Five-year limitation. -- Every action instituted to recover real property as against any person having peaceable and adverse possession thereof, cultivating, using, or enjoying the same, and paying taxes thereon, and claiming under a deed or deeds duly recorded, shall be instituted
within five (5) years next after the cause of action has accrued, and not afterwards. . . ."
Defendant contends that the right of an accounting for the years 1935, 1936, 1937, 1938 and 1939 was barred by Sections 29-203 and 29-206, Arizona Code Annotated 1939.
[62 Ariz. 207] Defendant further contends that Asa Battles and his heirs were estopped because he, Asa Battles, was a witness upon the final proof of said desert land entry and testified that he was not interested in the matter.
The judgment of the trial court was to the effect that the land involved was during the lifetime of Asa Battles and at the time of his death, the community property of Asa Battles and his wife, Hester A. Battles, and that an undivided one-half interest is vested in the heirs of Asa Battles, deceased, free from all right, title, claim or demand of any person claiming under said Hester A. Battles, and the plaintiff do have and recover from the ...