V. L. Hash and Virginia Hash, of Phoenix, for appellant.
J. E. Russell, of Phoenix, for appellee.
De Concini, Justice. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur.
De Concini, Justice.
[74 Ariz. 357] This is an action to reform a deed. The plaintiff alleged that the deed mistakenly conveyed the whole interest in a parcel of land when it was the intent of the parties to convey only a one-half undivided interest therein.
The facts are as follows: Lottie L. Revels and Ollie M. Bosch were sisters. Miss Bosch, a single woman, was the fee owner of a parcel of real estate. On October 1, 1932, she deeded the property to Mrs. Revels who was a widow. On October 26, 1932, Mrs. Revels reconveyed the property to Miss Bosch. The latter deed was not recorded by Miss Bosch until February 1946. Both conveyances were by warranty deeds. One of the plaintiff's witnesses, the attorney who drew the deeds, testified that the deeds were in "the nature of a gift of one to the other." Mrs. Revels died March 24, 1947 and Miss Bosch died December 8, 1947.
Mary Louise Corn, administratrix of the estate of Lottie Revels, hereafter referred to as the plaintiff, brought this action to reform the Revels' deed on the theory that there was a mutual mistake as to the meaning of the deed from Revels to Bosch.
Ralph M. Branche, administrator of the estate of Ollie M. Bosch, hereinafter referred to as defendant, denied that it was the intention of the parties to hold the property jointly, but rather by Ollie M. Bosch in fee simple.
The plaintiff introduced a number of witnesses whose theme of testimony was that the sisters lived together, treated the property as joint owners, sold a portion of it and divided the proceeds. However, none of the testimony tended to prove a mutual mistake except by inference. Attorney Terrence Carson who represented both sisters at the time the deeds were made, testified that the sisters wanted the "property held equally between them" and "during their lifetime it certainly was their intention to hold the property jointly." He also testified that the reason the property was placed in Mrs. Revels' name was because she was a widow and could get a tax exemption.
The deed was not made out in joint tenancy with the right of survivorship as provided by section 71-122, A.C.A.1939, because
as Mr. Carson testified, "that it was customary at that time to draw deeds and record one, so one could get the widow's exemption." While we do not condone such a practice we do know that many people resort to such tactics to avoid paying their just taxes. If any mistake was made it was in not having proper deeds executed which would have legally provided ...