William L. MARTIN, Administrator of the Estate of Lawrence Hix, a/k/a Lawrence Hex, a/k/a Lawrence Heck, Appellant,
Annie CLARK and Eugene Clark, husband and wife, Appellees.
[80 Ariz. 350] Flynn, Stewart & Allen, Phoenix, for appellant.
Hash & Bernstein, Phoenix, for appellees.
The plaintiff as guardian of the estate of one Lawrence Hix, aka Lawrence Hex and Lawrence Heck, brought an action against Eugene Clark and Annie Clark, his wife, in April, 1952, in three separate counts. The first count is in the nature of an action to quiet title to real property located in Phoenix. The second count is based upon a quitclaim deed to real property executed and delivered by the plaintiff's ward to defendants in July, 1948 in which plaintiff
'* * * alleges that said execution was obtained during a period when the plaintiff (meaning the ward) was not capable legally of executing same, being incapacitated from so doing by his mental incompetency and that said incompetency was known, or should have been known by these defendants, * * *.'
The third count is based upon fraud and duress and alleges:
'That defendants in obtaining the execution of said Quit-Claim Deed by plaintiff (meaning the ward), exercised
fraud and duress to such a degree as to deprive plaintiff of intention or will whatsoever, and that said deed does not represent intention or will of this plaintiff, * * * (meaning ward).'
The allegations of the complaint were denied by defendants' answer. The ward was a very elderly man and died in November, 1952. Martin was thereafter appointed administrator of his estate and prosecutes this action as such administrator. The cause was thereafter on September 9 and 10, 1954, tried to the court without[80 Ariz. 351] out a jury. At the close of plaintiff's case, on motion of defendants the third count of plaintiff's complaint was dismissed and at the close of all the evidence, which was in conflict on the question of the mental competency of the ward, the court took the matter under advisement and thereafter rendered judgment for defendants.
Plaintiff has appealed from the judgment of the trial court, from an order denying his motion for a new trial entered on December 2, 1954, and from an order denying his motion for a new trial based on newly discovered evidence entered January 18, 1955, and has presented the following assignments of error:
The trial court erred in dismissing the third cause of action of plaintiff's complaint at the close of plaintiff's case in chief.
The trial court erred in that findings of fact are not contrary to the ...