FERGUSON et ux.
Appeal from Superior Court, Pima County; John D. Lyons, Judge.
H. M. Van Denburgh, of Phoenix, for appellants.
John W. Ross, of Tucson, for appellee.
LaPrade, Justice. Stanford, C. J., and Morgan, J., concurring.
[64 Ariz. 358] This is an appeal by the appellants (plaintiffs below) from a judgment dismissing their quiet title action and quieting title in the appellee (defendant below).
On August 26, 1944, appellee by bargain sale deed, conveyed 40 acres of land in Pima County to one Mary Lou Tomeny, "for and in consideration of the sum of $ 10.00, love and affection". The deed conveyed "* * * all the estate, right, title, interest, claim of homestead property, possession, claim and demand whatsoever * * *".
(Emphasis supplied.) This deed was recorded October 13, 1944.
On December 11, 1944, appellants secured judgment against appellee for the sum of $ 3,479.78. They secured the issuance of an execution on December 27, 1944. Levy was had on December 30th. On January 31, 1945, appellants bid the property in at execution sale for $ 3,000.
On December 19, 1944, Mary Lou Tomeny and husband by bargain and sale deed, reconveyed the property to appellee. This deed was not recorded until February 17, 1945. In their brief, appellants say that they had no actual notice of the execution of this deed or of its delivery. Had the parties been examined, it very probably would have been made to appear that this deed was delivered shortly after its execution and that in truth and in fact the appellee not only had possession, but was in truth and in fact the owner of the record title, though unrecorded. On January 30, 1945, one day before the Sheriff's sale on execution, the appellee filed and recorded a declaration of homestead on the 40 acres, declaring, among other things, that she actually resided on the premises, and that it was her intention to use and claim the land for a homestead. On February 3, 1945, appellants filed suit to quiet title against the appellee and Mary Lou Tomeny, alleging, among other things, that they were the owners of the property and that defendants claimed some estate or interest adverse to appellants but that said claims were without any right whatsoever.
Tomeny did not answer, and default was entered against her. The appellee answered, [64 Ariz. 359] denying that appellants were the owners of the property or had any interest therein, and alleged that prior to the sheriff's sale, she filed with the County Recorder a declaration of homestead.
At the trial the only witness to testify was a deputy county recorder, who identified the conveyances referred to, the execution ...