Rehearing Denied November 19, 1952.
Morgan & Locklear, of Prescott, for appellant.
Crawford & Baker, of Prescott, for appellees.
Stanford, Justice. Udall, C. J., and Phelps, De Concini, and La Prade, JJ., concurring.
[74 Ariz. 298] This is an appeal from a judgment of the Superior Court of Yavapai County. Homer [74 Ariz. 299] R. Wood, hereinafter referred to as appellant, brought suit against James E. Harrington and F. H. Lyons, hereinafter referred to as appellees, to obtain a declaratory judgment that the appellee's interests in the mining claims involved in the suit are subject to the lien of an agreement in the nature of a purchase-money mortgage which the appellant made with the appellees' predecessors in title. The lower court held that no lien existed in favor of appellant as against the appellees.
Until March 4, 1938, appellant was the owner of an undivided one-half interest in five unpatented and eleven patented tungsten mining claims, known generally as the Black Pearl group. On that date appellant executed a warranty deed and a mining deed as grantor to three grantees, H.
L. Williams, Joseph W. Walton, and W. W. Stephenson, conveying his undivided one-half interest in the above mining property. The deeds were recorded on March 5, 1938 with the county recorder of Yavapai county, Arizona. Also on March 5, 1938, H. L. Williams, Joseph W. Walton, and W. W. Stephenson, as first parties, and the appellant, as second party, entered into an agreement whereby the appellant agreed to convey to Williams, Walton and Stephenson his half-interest in the Black Pearl claims for the sum of $ 40,000, to be paid by the purchasers to appellant either in cash or on a royalty basis. This contract allowed the purchasers twenty years within which to pay the full purchase price of $ 40,000. This agreement was recorded on October 26, 1943.
The U. S. Fidelity & Guaranty Company, a corporation, obtained a judgment against Williams on October 25, 1939 in Yavapai county, Arizona. A writ of execution on this judgment was issued on September 25, 1943, and a return made on the same date by the sheriff of Yavapai county, showing his levy of the writ of execution on the interest of Williams in the Black Pearl group of mining claims. An execution sale of the Black Pearl claims was held on the 15th of November, 1943 by the sheriff of Yavapai county on his levy of September 25, 1943, at which sale the appellee James E. Harrington became the purchaser of Williams' interest in the above-mentioned mining claims. On May 26, 1944, the sheriff of Yavapai county executed his deed conveying Williams' interest to the appellees.
October 6, 1943, an agreement was executed between W. W. Stephenson, as first party, and D. O. Roe, as second party, for the sale of Stephenson's interest in the Black Pearl claims to Roe. This agreement mentioned the agreement of March 5, 1938 between appellant and Williams, Walton and Stephenson. On October 12, 1943, a warranty deed and a mining deed were executed by W. W. Stephenson, as grantor, to D. O. Roe, as grantee, conveying Stephenson's interest in the Black Pearl claims to Roe. These deeds were acknowledged [74 Ariz. 300] the same date, and were recorded on October 16, 1943.
Also on October 12, 1943 a warranty deed and a mining deed were executed by D. O. Roe and wife as grantors to the appellees as grantees, conveying the interest of the Roes in the Black Pearl claims to the appellees. These were acknowledged on October 27, 1943, and recorded on November 19, 1943 in Yavapai county.
The question presented to this court for its determination is whether the agreement of March 5, 1938 between appellant and Williams, Walton and Stephenson has any effect upon the ...