ALEXANDER et al.
O'NEIL et al.
Rehearing Denied May 18, 1954.
[77 Ariz. 93] William C. Eliot, Ronald Webster, Jr., Phoenix, for appellants.
Kramer, Morrison, Roche & Perry, Phoenix, for appellees T. R. O'Neil and Doris O'Neil.
[77 Ariz. 94] Gibbons & Kinney, by Ed. W. Hughes, Phoenix, for appellees Janie F. Northington and Jonas Northington.
The primary question presented by this appeal relates to the rights of parties under the recording act, Section 71-423, A.C.A.1939. Plaintiff Marcelious Alexander claims under an unrecorded deed prior in execution, and defendant T. R. O'Neil claims under deed prior in registry. Plaintiff's unrecorded conveyance (which for purposes of this appeal is agreed not to be a forgery) is declared by the statute, supra, to be void as against O'Neil, providing the latter was a 'purchaser for valuable consideration without notice'.
The essential facts, which are somewhat involved, are as follows: William Solly, a Negro minister, and his wife Annie Solly, were residents of Phoenix and owned property here. The aged couple had no children of their own, so they, at the instigation of one Grover Cleveland Dobbs, who seemed to be the moving factor in the various transactions hereinafter set forth, on October 20, 1933 purportedly executed a warranty deed to one Marcelious Alexander, a seventeen-year-old nephew of William Solly, then and at all times since a resident of Mississippi. The deed conveyed the following property, viz.:
Parcel 1. Lot 7 Block 29, Original Townsite of Phoenix (then and now known as the St. Louis Hotel property).
Parcel 2. Lot 3 Block 9, Collins Addition to the City of Phoenix (now known as the Mack and Annie Goins property).
Parcel 3. Lot 4 Block 9, Collins Addition to the City of Phoenix (now known as the Janie and Jonas Northington property).
A life estate was reserved to the grantors in all three parcels. Dobbs declares the original intention of the grantors was that Alexander should hold the real property in trust for other blood relatives of William Solly. The deed was not recorded until October, 1948, but instead was given into the possession of Dobbs, who took it to his home in the State of Mississippi.
On October 4, 1944, William Solly died, testate, naming his wife executrix and sole beneficiary of his will. His estate, which was appraised at $12,650, was probated in the Superior Court of Maricopa County. Annie Solly, being illiterate, could not qualify as executrix, and she named T. R. O'Neil, who was duly appointed administrator c. t. a. On December 24, 1945, the estate was closed, the administrator discharged, and a decree of distribution entered distributing to Annie Solly the entire estate, consisting of the three parcels heretofore described, and Lot 19, Block 15, Irvin's Addition to the City of Phoenix (now known as the Milton and Laura Long property). There was insufficient cash in the estate to pay O'Neil the $1964 due as administrator's fee, or the $151 due for attorney's fees, hence a lien was impressed on all the property distributed to Annie [77 Ariz. 95] Solly. Immediately following this the claim and lien of attorneys was assigned to O'Neil. In probating this estate no recognition was taken of the unrecorded deed to Alexander.
T. R. O'Neil for many years past has been a porter and elevator operator at the First National Bank in Phoenix. He first met the Sollys when he moved to Phoenix in 1930, at an approximate age of twenty-four years. O'Neil became a tenant of Sollys' at the St. Louis Hotel property, and has resided there since. He was a 'handyman' around the place, and the Sollys became very much attached to him as he took more and more of the load off their shoulders. Eventually they both referred to him as 'son' and called his children their 'grandchildren'. Shortly after Mr. Solly's death, Annie Solly executed a will (revoked by a later will) leaving all her property to O'Neil. Thereafter, on March 28, 1946, Annie Solly executed and delivered to T. R. O'Neil the quitclaim deed here in question, conveying to him the four parcels of realty distributed to her under the decree of distribution of her husband's estate. The consideration recited in the deed was $10, but the grantee admits this was not paid. Accompanying this, she executed and delivered to O'Neil a bill of sale to the personal property in the St. Louis Hotel. The next day this deed and bill of sale were placed of record with the county recorder of Maricopa County. Thereafter Annie Solley remained in her usual room in the hotel, and O'Neil assumed full control and management of the property, paying to Annie Solly $125 a month from the income thereof, and caring for her until her death.
On November 19, 1947, Annie Solly was nearly ninety years of age, decrepit, hard of hearing and bedridden. On this date she executed her last will, naming Marcelious Alexander her sole devisee and legatee. She purported to leave to him the same four parcels theretofore conveyed to O'Neil, and in this will it was expressly stated that O'Neil got her property by 'some kind of a trick' and that she had 'never intended that he should have any of our property through gift or otherwise.' On January 10, 1948, Annie Solly died. Her will was admitted to probate, and on October 3, 1950, Dobbs was appointed administrator thereof.
Prior to the commencement of the two lawsuits here involved, the following transfers were made, in addition to the conveyances heretofore set forth.
Parcel No. 1 (The hotel property, Lot 7 Block 29)
December 24, 1948, Marcelious Alexander et ux. convey to Mack and Annie Goins.
Parcel No. 2 (Lot 3 Block 9, Collins Addition)
January 2, 1948, O'Neil et ux. convey to Mack and Annie Goins. The latter are relatives of William Solly. The conveyance is made at the behest of Dobbs, and no monetary ...