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Mason v. Ellison

Supreme Court of Arizona

July 3, 1945

WILLIAM J. MASON, Jr., and OUIDA MASON, Appellants,
v.
SCOTT ELLISON and CLYMENA ELLISON, Appellees

APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge.

Judgment affirmed.

Messrs. Kramer, Morrison, Roche and Perry, for Appellants.

Messrs. Phillips, Holzworth, Phillips and Jones, for Appellees.

Patterson, Superior Judge. Stanford, C. J., and Morgan, J., concur.Note: Justice LaPRADE being disqualified, the Honorable W. E. PATTERSON, Judge of the Superior Court of Yavapai County, was called to sit in his stead.

OPINION

Patterson, Superior Judge.

Page 327

[63 Ariz. 197] William J. Mason and Ouida Mason, his wife, appellants, brought this action against Scott Ellison and Clymena Ellison, his wife, appellees, and others for the purpose of establishing appellants' estate to lot 5, block 12, Avalon Annex, situate in Maricopa County, Arizona.

In 1938, appellee Scott Ellison purchased an unimproved lot, which is involved in this action, from a man by the name of Skinner, for the sum of $ 200. Thereafter, appellees built a five room brick and stucco house on the lot at a cost of $ 2300, which they later sold, under contract, to one Curtis for $ 2700. Curtis took possession of the premises on or about October 15, 1941, paid $ 275 on the purchase price and remained in possession until April, 1942, at which time he made arrangements to sell his equity to appellants. On April 22, 1942, an escrow was set up between appellants and appellees, whereby appellants agreed to purchase the property from appellees for $ 2700, less $ 275 theretofore paid by Curtis. Mr. Curtis agreed with Mason to accept $ 250 for his equity, which amount Mason had deposited with the escrow agent. Appellants took possession of the premises when the escrow was set up in April, 1942.

It appears from the evidence that Scott Ellison at one time was in possession of the necessary deeds to complete his chain of title which had been left in possession of his attorney. Prior to January, 1942, it was discovered that, arising out of the death of his [63 Ariz. 198] then attorney, the deeds could not be located in his attorney's office. It then became necessary to attempt to secure deeds to replace the misplaced ones. Particularly a deed from Mrs. Renaud, in whose name the title appears to have been vested of record at the time of setting up the escrow. Ellison had endeavored to locate Mrs. Renaud over a period of time after the escrow was entered into in order to obtain from her a deed to replace the one that was lost while in possession of appellees' attorney.

On June 9, 1942, the Realty Title and Escrow Company, which we shall hereafter call the Escrow Company, obtained a treasurer's deed to the premises on account of delinquent taxes for the last half of the year 1930. Appellees testified they had no knowledge of delinquent taxes for years prior to 1939. In July appellants learned of the acquisition of the deed by the Escrow Company. On September 14 appellants received a letter from the Escrow Company, advising in substance that it was the owner of the premises involved in this action, together with demand that appellants surrender possession of the premises by September 21, 1942. On September 22 appellants obtained a quitclaim deed from the Escrow Company, in their favor, for the sum of $ 500. On September 28 appellants gave notice of termination of the escrow heretofore mentioned. On March 10, 1943, appellees recorded their deed from

Page 328

Skinner. On July 26, 1943, appellants filed their action to quiet title to the premises involved against appellees and others, alleging ownership and praying that title be quieted in appellants.

The trial court quieted title in appellants as against all of the individual defendants except Scott Ellison and his wife, appellees herein, and quieted title as against them, conditioned upon appellants paying to them something over $ 1500 and interest, which was the balance remaining due on the $ 2700 sale price [63 Ariz. 199] after allowing appellants credit for all expenditures made in connection with this litigation and acquisition of the quitclaim deed from the Escrow Company and the $ ...


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