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APPEAL from a judgment of the Superior Court of the County of Cochise. Gordon Farley, Judge.
Judgment affirmed in part, reversed in part, and cause remanded with directions.
Mr. Clifford R. McFall, for Appellant.
Mr. Martin S. Rogers, for Appellees.
Morgan, J. Stanford, C. J., and LaPrade, J., concur.
[63 Ariz. 547] Morgan, J.
Plaintiff, an Arizona mining corporation claiming to be the owner of certain unpatented mining claims with the fixtures and improvements thereon, situate in Cochise County, brought suit against the defendants. The complaint contains three causes of action. The first count is for cancellation of judgments, in favor of the individual defendants and the administrator's decedent, charged to have been procured through fraud and upon the ground that plaintiff's title was clouded thereby. The second count charged that the judgments were barred by the statute of limitations, that the defendants were barred and estopped from asserting the liens thereon or from enforcing such judgments, and that plaintiff's title be quieted as against the judgments. The third count was brought under Section 27-1501, Arizona Code Annotated 1939, for possession of the property which defendants were alleged to be unlawfully withholding.
Answer to the complaint and the various causes of action contained therein was made by defendants. On this appeal, the answer to the third count only need be [63 Ariz. 548] considered. This answer denies that plaintiff is the absolute owner of and entitled to the immediate and exclusive possession of the property. We paraphrase the following special defense urged by defendants:
Defendants are in lawful, peaceable and adverse possession "under a certain contract of purchase executed by the plaintiff in favor of the defendants' predecessor in estate, title and possession, dated the 20th day of December, 1921, signed by the officers of Keystone Copper Mining Company, and confirmed and approved by the board of directors signing the written minutes of said approval," which contract was filed and recorded in the office of the county recorder. The contract as recorded describes a tract of 125 feet by 125 feet. They assert peaceable, adverse possession of the tract as described, and allege that possession was taken under the contract of purchase referred to. They further allege that their possession is lawful, and that they and their predecessors in interest have been and now are in continuous possession, and have paid the taxes thereon for more than twenty years. The bar of the statute of limitations to plaintiff's claim is asserted. They invoke the provisions of Section 29-106, Arizona Code Annotated 1939, providing that whenever an action is barred by the provisions of Chapter 29, Article 1, Real Actions, the person who pleads and is entitled to the bar shall be held to have full title. Defendants also, through counterclaim, sought to have their title quieted to the tract of land mentioned. The allegations of the counterclaim are practically the same as those contained in the answer to the third count, with the following additional averments; that defendants are the owners of the surface rights with the improvements thereon of the tract described, and have been in continuous possession of such premises, paying the taxes thereon since 1921. The counterclaim relies on the contract to purchase as recorded, but does not allege [63 Ariz. 549] that the contract was confirmed or approved by the board of directors.
Defendants' affirmative defense and counterclaim was placed in issue by plaintiff's reply. Plaintiff pleads that defendants are estopped to claim the tract of ground in question and the improvements thereon, upon the ground that they have made various oral and written representations to the effect that all of said property and improvements belonged to plaintiff, and that in reliance thereon many persons had loaned and advanced money to the corporation and had purchased its bonds and stock.
The case was tried to the court without a jury. Written opinion and decision was filed. Findings of fact and conclusions of law, on the second and third counts of the complaint and defendants' counterclaim, were made. Although demand was made for findings upon the first count, none were made nor any formal judgment entered thereon.
The findings and conclusions are long, and for the purpose of this appeal may be summarized as follows: The court found that plaintiff was the owner of the property as alleged in its complaint, and that the judgments mentioned in the second count
were barred by the statute of limitations, no valid renewal thereof having been made, and concluded that plaintiff was entitled to judgment ...