George M. Sterling, of Phoenix, for appellant.
Moore & Moore, of Phoenix, for appellee.
Gibbons, Superior Judge. La Prade, C. J., and Udall, Stanford and De Concini, JJ., concurring.
Note: Justice M. T. PHELPS being disqualified, the Honorable J. SMITH GIBBONS, Judge of Superior Court of Apache County, was called to sit in his stead.
Gibbons, Superior Judge.
[71 Ariz. 81] This is an appeal from a judgment of the Superior Court of Maricopa County, decreeing Bertha May McNaney, formerly Bertha May Dawson, hereinafter called plaintiff, to be the owner of an undivided one-half interest in and to certain real and personal property described in the pleadings, directing the sale of said property, and the proceeds thereof equally divided between the plaintiff and Timothy T. Dawson, herein called defendant.
The undisputed facts pertinent to a determination of this case are that plaintiff and defendant were formerly husband and wife, and during coverture purchased the real property involved under contract for $ 2,800, with a down payment of $ 300, and the balance in monthly installments, from community earnings. The down payment above specified and the purchase price of the furniture was derived from an award of the Industrial Commission for permanent injuries received by defendant while employed by the City of Phoenix in 1937. On October 5, 1939, plaintiff transferred by quit-claim deed the legal title of her interest in the real property to the defendant, and simultaneously defendant executed a quit-claim deed reconveying the same property back to plaintiff.
On February 22, 1941, plaintiff filed complaint for divorce, defendant filed a waiver, and two days later a decree was entered. No reference was made to the real and personal property involved in this action, either in the complaint or the decree of divorce.
On September 16, 1947, plaintiff filed her complaint in the instant action alleging that the property involved herein was acquired during coverture, was community property at the time of the divorce, and no provision having been made in said decree for the division thereof, the plaintiff and defendant had held and now hold such property as tenants in common, each possessed of an undivided one-half interest therein. That at all times from the entering of said decree defendant, with plaintiff's consent, has been in possession thereof, and now refused to permit plaintiff entry thereon, or to make partition thereof. Defendant, by way of answer, makes no denials, but affirmatively alleges as defenses:
1. That the amended complaint fails to state a claim upon which relief can be granted;
2. That the alleged cause of action accrued more than six years before the commencement of said action, and is, therefore, barred by the provisions of Chapter 29, Arizona Code Annotated 1939, Statute of Limitations;
3. Recites the execution, delivery and recording of the quit-claim deed from plaintiff [71 Ariz. 82] to the defendant, above referred to, and alleges the defendant is now, and at all times since October 5, 1939, has been the owner and in possession of the real estate as his sole and separate property.
Plaintiff's reply (1) admits execution of said deed, but denies she thereby transferred her interest to defendant, as they were husband and wife and living on the property at the time, and that on many occasions prior to the execution of the deeds
in question defendant requested and attempted to persuade plaintiff to execute to him a quit-claim deed to said property so that he could claim full tax exemption and relieve the community from the payment of taxes thereon; (2) alleges that, in response to such repeated requests, plaintiff executed said quit-claim deed and delivered the same to defendant; (3) that plaintiff did not intend to transfer and defendant did not intend to receive the beneficial interest of plaintiff in said property; (4) that no consideration was paid by the defendant, and that both ...