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Davis v. Kleindienst

Supreme Court of Arizona

May 20, 1946

DAVIS et al.
v.
KLEINDIENST

Appeal from Superior Court, Navajo County; W. E. Ferguson, Judge.

See also, 165 P.2d 995.

Judgment affirmed.

P. H. Brooks, of Winslow, for appellants.

C. D. McCauley, of Winslow, and Moeur & Moeur and Charles N. Walters, all of Phoenix, for appellee.

Morgan, Judge. Stanford, C. J., and LaPrade, J., concurring.

OPINION

Page 79

[64 Ariz. 253] Morgan, Judge.

Appellee, as plaintiff, instituted this action against appellants, defendants in the court below, for reformation of deed and to quiet title to a tract of ground in the city of Winslow. Defendants resisted the action on the ground that they were subsequent purchasers without notice and for a valuable consideration. They denied the allegations pertaining to plaintiff's right to quiet title. Defendant Edna Davis is a party by reason of her marital relationship to her husband. The parties will be designated as plaintiff and defendant. The facts proven at the trial may be stated as follows:

During the year 1924 plaintiff purchased from one John K. and Frances E. Kelley, through their attorney in fact John L. Sweeney, a tract of ground containing approximately [64 Ariz. 254] 15 acres. The deed contained the following description: "Beginning at the fence at the Northwest corner of the Bazell Motor Company Camp Grounds, Thence in a due Northerly direction to the North Line of the John K. Kelley property, thence Westerly along the John K. Kelley property line to the J. E. Kleindienst property line, thence in a South and slightly Easterly direction along the J. E. Kleindienst property line to a point just West of point of beginning, thence due East to point of beginning, being unplatted acreage and a portion of the South East Quarter of Section 24, Township 19 North of Range 15 East, G&SRM, Winslow, Navajo County, Arizona."

Through error, the first course or eastern boundary was described as running "in a due northerly direction". Actually this line should have been described as running north 27 degrees east approximately. The deed, on its face, contained only 5.7 acres of the westerly portion of the tract which plaintiff was purchasing. The error resulted from the fact that while the platted portion of Winslow and additions thereto, other than the Mahoney addition, disclose the streets as running north 27 degrees east, they are generally referred to as

Page 80

northerly and southerly. At the time of the purchase, a survey was made and an iron stake was placed in the ground at the northeast corner of the tract, establishing the eastern line as running from the point of beginning north 27 degrees east to the north line of the John K. Kelley property, and including approximately 15 acres.

No improvements were placed on the property nor was it enclosed. Taxes on the 15 acres were assessed to plaintiff and paid by him from and after the year 1925. The description in the assessor's office merely read "Unpl Hicks-W. Bazell C. G. 15 A," and later was carried as "15 A." In 1942, plaintiff hired an engineer who platted and subdivided the acreage. The iron pipe at the northeast corner was found and a cement block or marker placed at such corner. The plat so prepared was filed and accepted by the city council on June 2, 1942. It was not filed with the county recorder until February 24, 1944. It apparently was submitted to the county assessor who designated the same as platted ...


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