V. L. Hash, of Phoenix, for appellant.
Theodore G. McKesson, Thomas P. Riordan, James D. McKesson, of Phoenix, for appellees.
De Concini, Justice. La Prade, C. J., and Udall, Stanford and Phelps, JJ., concur.
De Concini, Justice.
[70 Ariz. 123] Edward D. Johnson and Edna I. Johnson, appellees herein, brought an action against John C. Lee, appellant herein, concerning certain land located in Maricopa County, the title to which has often been litigated in the courts of this state. Appellees' complaint contains two causes of action, both concerned with the above-described property. Both causes of action are possessory in character. The first cause of action seeks damages for interference with appellees' possession and the second cause of action asks that appellees be restored to possession and that appellant be enjoined from further interference therewith. The appellant's answer to the complaint denied that title to the aforesaid premises was in appellees, by reason of his claimed adverse possession thereof. In response to appellees' motion for summary judgment the trial court entered an order in accordance with section 21-1213, A.C.A.1939, Rule 56(d), specifying that the appellees had title and were entitled to the possession of the abovementioned premises, and that all further issues which were in controversy should be determined at the time of the trial of this action.
After hearing all the evidence the learned trial court rendered judgment in favor of the appellees, awarding $ 300 actual and exemplary damages against appellant and further ordered with respect to the encroachment of appellant's home upon appellees' premises, as follows:
"(6) That the defendant John C. Lee, is required and directed to remove said encroachment within a period of thirty (30) days from the date of this judgment, or within five (5) days after this judgment tender to the plaintiffs Five Hundred Dollars ($ 500.00) for the land occupied by said encroachment, together with a 3 foot additional strip contiguous and adjacent to said encroachment.
[70 Ariz. 124] "(7) That if the defendant, John C. Lee, tenders payment in accordance with this judgment, the plaintiffs are required and directed to convey to the said defendant, John C. Lee, by warranty deed, the above described encroachment, together with the three (3) foot additional strip contiguous and adjacent to said encroachment. * * *"
Appellant assigns a number of errors and propositions of law. In his briefs and oral argument he insisted strenuously that the trial court erred in granting summary judgment for appellees on the question of title and in not allowing him to show any evidence of adverse possession prior to the decision of this court in the case of Lee v. New York Life Insurance Co., 61 Ariz. 177, 145 P.2d 843.
The last-mentioned case, hereinafter called the New York Life case, was a suit brought by the said company to quiet title to a parcel of land which included the land involved in this suit. The trial court gave judgment for the New York Life, which judgment was affirmed. See citation, supra. The appellees here, derive their title thru mesne conveyances from the New York Life, and are therefore, in privity with the New York Life. As in the ...