Lewis, Roca, scoville & Beauchamp, and Charles A. Stanecker, Phoenix, for appellant.
Struckmeyer, Whitney & Perry, Phoenix, for appellee.
This is an appeal by defendant, National Public Service Insurance Company, from a judgment quieting title to real property-notwithstanding the answer of the jury to the sole interrogatory submitted to it-entered in favor of Thomas H. Welch, plaintiff-appellee. Mary Alice Welch, a third party defendant in the court below, is not a party to this appeal. As only questions of law are raised, no reporter's transcript was submitted. The parties will herein be referred to either by name or as appellant and appellee.
[81 Ariz. 157] The basic facts involved in this litigation are not in dispute, and, with the procedural steps heretofore taken, they may be summarized as follows: Thomas H. Welch, as grantor, purportedly executed a quitclaim deed to Mary Alice Welch, grantee, covering certain real property in Phoenix, Arizona. This instrument was placed of record with the county recorder of Maricopa County on October 8, 1949. The appellant company, in reliance upon the record title being in Mary Alice Welch, on February 15, 1951, made a loan to the latter, taking from her as security a realty mortgage on such premises. This instrument was placed of record on February 23, 1951. Thereafter on March 6, 1951, Thomas H. Welch filed suit against Mary Alice Welch (docketed as cause No. 68780) to set aside the quitclaim deed in question upon the ground that it was a forgery. This cause was tried to a jury, resulting in a judgment entered May 5, 1952-from which no appeal was taken-declaring the deed canceled and void based upon the jury's finding that Thomas H. Welch had not executed same. Appellant insurance company was not made a party to that suit and had no notice of it.
Relying upon his judgment in cause No. 68780, supra, Thomas H. Welch refused to acknowledge the validity of appellant's mortgage and demanded that this could on his title be removed. When this demand was refused, the instant suit, docket No. 76331, was filed by Welch against the insurance company, wherein he asked that he be adjudged the owner in fee simple of the property free of any mortgage lien or other claim of said defendant (appellant here). The latter filed an answer to plaintiff's complaint and also a counterclaim and third party complaint naming Mary Alice Welch, a single woman, as a third party defendant. Therein it sought a foreclosure of its mortgage against Thomas H. Welch as well as the third party defendant.
The case was tried before a jury which, on November 22, 1954, rendered a unanimous answer to the sole interrogatory submitted, viz.:
'Interrogatory: Do you find from the evidence that the plaintiff, Thomas H. Welch, signed, acknowledged and delivered the deed in question to Mary Alice Welch?
The court thereafter, on November 30, 1954, entered a judgment and decree of mortgage foreclousure in favor of the insurance company as third party plaintiff, all in accordance with the finding of the jury. A motion for new trial, or, in the alternative, for judgment notwithstanding the verdict, was filed (this latter nomenclature is erroneous; see Carrillo v. Taylor, 81 Ariz. 14, 299 P.2d 188). the learned trial court, [81 Ariz. 158] recognizing the jury's answer as being only advisory, made the following minute order:
'This cause was heretofore taken under advisement on plaintiff's motion for new trial, or in the alternative, for judgment notwithstanding the verdict.
'It is the decision of the court that there were no prejudicial irregularities in the proceedings of the court of abuses of discretion whereby the plaintiff was deprived of a fair trial. It is further the decision of the court that there was no misconduct by the defense nor were there any errors during the trial which would deprive plaintiff of a fair trial, and the court is of the opinion that the verdict of the jury was proper under the evidence and facts, and therefore not contrary to the law and evidence presented.
'It is, however, the opinion and decision of this court that the judgment in the cause before the Honorable Dudley W. Windes presiding on May 5, 1952, in action No. 68780, entitled 'Thomas H. Welch, plaintiff, vs. Mary Alice Welch, defendant,' is decisive of the issue whether the deeds, one of which was involved in this cause, were a forgery. the defendant herein having obtained the mortgage from Mary Alice Welch against whom the issue of the forgery was resolved cannot obtain any greater rights than Mary Alice Welch had as mortgagor. The previous suit between the alleged grantor and grantee having determined this issue of forgery which was again tried over plaintiff's objection in this cause, a judgment notwithstanding the verdict should be entered in favor of plaintiff and against defendant as prayed.
'Now, therefore, it is ordered granting the motion for judgment notwithstanding the verdict for the reason above stated.'
A formal written judgment, in favor of appellee and against appellant, conforming to the above order, was entered on April 1, 1955. This appeal followed.
Appellant contends the sole question presented is whether the doctrine of res judicata applies. Its ...