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Kennedy v. Morrow

Supreme Court of Arizona

March 22, 1954

KENNEDY
v.
MORROW

Page 327

[77 Ariz. 153] Dougherty, Chandler & Connor, Phoenix, for appellant.

John M. Schwartz, Tucson, for appellee.

UDALL, Justice.

Plaintiff-appellant Florence L. Kennedy brought this action to quiet her title to the whole of certain lands in Pinal County, Arizona. Defendant-appellee Marjorie Cummings Morrow formerly Marjorie Cummings, answered and counterclaimed to quiet her title to an undivided one-fourth interest in said lands, detailing the facts upon which she relied to establish her claim, and alleging fraud and deceit on the part of plaintiff. It was the judgment of the court that defendant was the owner of an undivided one-fourth of the real estate, her title thereto was quieted against plaintiff, and the latter was granted no relief whatever. It is from this judgment that an appeal is prosecuted. We shall hereafter refer to the parties by name, or an plaintiff and defendant.

The material facts which determine the disposition of this case upon appeal, stated in the light most favorable to sustaining the judgment, are actually quite simple. In the year 1947 Florence Kennedy and Doctor Roland Cummings, then husband of Marjorie Cummings Morrow, were the holders

Page 328

of Certificate of Purchase No. 6305(G) for state school lands in Pinal County, Arizona, viz.: Section 3, T. 4 S., R. 9 E., G&SRB&M. On the records of the state land department, Florence Kennedy and Roland [77 Ariz. 154] Cummings appeared as 'joint tenants', (hence under the statute they were tenants in common, Section 71-122, A.C.A.1939) each holding an undivided one-half interest in the realty. It should be stated that the plaintiff was then, and for many years prior thereto had been, the secretary of Dr. Cummings and was thoroughly familiar with all of the matters herein recited.

Marjorie Cummings sued Roland Cummings for divorce, and the interlocutory judgment of the California court ordered Roland Cummings to execute a deed conveying to his wife a one-fourth interest in this Arizona realty. On October 20, 1947, such deed was executed and delivered, and on November 22, 1947, it was filed of record with the county recorder of Pinal County. With knowledge of the fact that Roland Cummings had, pursuant to the order of the California court, conveyed to this wife this one-fourth interest, Florence Kennedy procured from Roland Cummings an assignment of his interest in the certificate of purchase. Plaintiff Florence Kennedy, without disclosing the true facts, paid to the state land department the final payment due under the certificate of purchase, and presented the assignment made by Roland Cummings to her. On the face of the record before the state land commissioner it thus appeared she was the only person owning an interest in the certificate of purchase or in the realty, and since final payment had been made a patent regular in form for the tract described issued to her on January 7, 1948.

Trial was held March 1, 1950, before the court sitting without a jury. We here set forth plaintiff's case in chief, in its entirety:

'Mr. Robinette: If the Court please, we move for the association of Mr. A. L. Abrahams, a member of the California bar, as counsel for the plaintiff in this action.

'The Court: The record may so show.

'Mr. Robinette: The plaintiff offers in evidence the original patent issued by the State of Arizona to Florence L. Kennedy, dated January 7, 1948, bearing the seal of the State of Arizona, covering the land herein involved.

'The Court: If there is no objection it may be admitted.

(Document referred to was admitted and marked Plaintiff's Exhibit No. 1)

'Mr. Robinette: The plaintiff rests.'

Defendant then introduced evidence on her counterclaim, revealing the facts herein set forth. There was a blanket and persistent objection by plaintiff that any evidence of events occurring before the issuance of the patent was incompetent, irrelevant, and immaterial to the issues in the case.

[77 Ariz. 155] The trial court, on October 18, 1950, made very complete findings of fact and conclusions of law which have been of material aid in deciding this appeal. The court concluded in part:

'V.

'By virtue of her (defendant's) vested interest as a holder in community with her husband, and by the said deed from her husband to her under date of October 20th, 1947, the defendant owned an undivided one-fourth interest in said land at the time of the issuance of the patent on January 7th, 1948.

'VI

'A suit to quiet title is one of equitable cognizance, and where therein it is found that a patent has been erroneously issued through fraud, mistake, or wrong view of law to one person when another was legally entitled to it the court will go behind the patent and give effect to such equitable right. Thus, in the instant cause, it is clear that the right of the defendant as an equitable owner of an undivided one-fourth of said land is paramount and

Page 329

superior to the claim of the plaintiff to the whole under and by virtue of the patent, the plaintiff holds in name the patent as trustee for the defendant to the extent of an undivided ...


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