Brown v. Peterson

• Court: Arizona Supreme Court
• Writing for the Court: LOCKWOOD, J.
• Citation: Brown v. Peterson, 27 Ariz. 418, 233 P. 895 (Ariz. 1925)
• Decision Date: 04 March 1925
• Docket Number: Civil 2193
• Parties: F. W. BROWN and MARTHA BROWN, His Wife, Appellants, v. CHARLES A. PETERSON, Appellee

233 P. 895

27 Ariz. 418

F. W. BROWN and MARTHA BROWN, His Wife, Appellants, v. CHARLES A. PETERSON, Appellee

Civil No. 2193

Supreme Court of Arizona

March 4, 1925

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. S. Jenckes, Judge. Affirmed.

Messrs Dougherty & Dougherty and Mr. G. W. Rogers, for Appellants.

Messrs Allen & Alldredge and Mr. John L. Gust, for Appellee.

OPINION

LOCKWOOD, J.

During December, 1919, John Cummard, a real estate agent in Mesa had listed with him for sale a certain 40-acre tract located near that city, and approached one F. W. Brown, hereinafter called plaintiff, in an effort to sell him the property. A contract of sale between plaintiff and Charles A. Peterson hereinafter called defendant, was executed, by which defendant agreed to sell the aforesaid land to plaintiff for $15,200, $3,000 cash, and the balance over a period of eight years as set forth in the contract. The contract was dated January 2, 1920, but plaintiff did not sign it until February 16th. Before the 16th of February, plaintiff was informed the legal title to the land was in the minor child of defendant, Cecelia Peterson, and, at the suggestion of plaintiff's attorney, a bond was prepared by the latter and executed by defendant, the vital portion of which reads as follows:

"The condition of the above obligation is such that whereas, on the 2d day of January, 1920, we executed an agreement for the sale of real estate to the south half of the south half of the northeast quarter of section 9, township 1 south of range 5 east of the Gila and Salt river base and meridian, and located in Maricopa county, Arizona, to F. W. Brown, of Mesa, Maricopa county, Arizona. The title to these said premises is now in Cecelia L. Peterson, our minor daughter, and we hereby covenant and agree that on or before the 1st day of August, 1920, we will have a guardian duly and legally appointed to obtain the permission of some court of proper probate jurisdiction to appoint some competent person as guardian of the said Cecelia L. Peterson, and to secure the consent of the said court to carry out the said contract between us and the said F. W. Brown. If we do carry out these covenants, so obtaining the consent of a probate court, then shall this obligation be void; otherwise in full force and effect."

Plaintiff took possession of the premises in February, 1920. In the spring of 1920, defendant was appointed guardian of the minor, Cecelia Peterson, in California, the place of her residence, and duly qualified as such. On November 22, 1920, the time for such application having been extended by mutual consent, he applied for letters of guardianship in Maricopa county, which were refused him on the ground that he was a resident of California. In December, 1920, at the request of defendant, Leo Alldredge filed a petition in Maricopa county for such letters, which were granted in the same month, and he filed an inventory and appraisement, setting forth the land in question, as being the property of the minor.

On September 8, 1921, defendant, through his attorney, Elijah Allen, who was a partner of Alldredge, filed suit against the latter as guardian, alleging substantially that the minor held the lands in trust for the defendant. Alldredge answered with a general denial upon the same day, and a decree was rendered, signed and filed immediately, attempting to divest the title from the minor, and to place it in the hands of the defendant. Pursuant to the decree a guardian's deed was also made in favor of defendant.

During the spring of 1922 plaintiff abandoned the premises and the contract, no more payments having been made thereunder. Thereafter plaintiff filed suit against defendant to recover the money paid by him, setting up three causes of action; first, for money had and received; second, for damages for fraudulent misrepresentation; and, third, for recovery on the bond. The case was tried on December 20, 1922, before the court without a jury, and on December 27th the court filed a written opinion, and rendered judgment for defendant, upon the ground, as stated in the opinion, that the contract was against public policy, and, as the parties were in pari delicto, plaintiff could not recover. Motion for new trial was made and denied in the usual manner, and an appeal from the order and the judgment followed.

The written opinion of the trial court, while interesting and instructive, as showing the theory upon which the court proceeded, does not, as stated by us in Deatsch et al. v. Fairfield et al., ante, p. 387, 233 P. 887, supply the place of the findings of fact provided by the statutes. We are therefore in the condition, in which we have in the past so often found ourselves, of being obliged to assume the court found every fact necessary to support the judgment, and, if there is any reasonable evidence to sustain such findings, that it did so correctly. Blackford v. Neaves, 23 Ariz. 501, 205 P. 587.

It is plain, therefore, that the issues presented to us are almost entirely matters of law, the vital questions being, first, whether or not the contract and bond referred to are void as against public policy; and second, if so, are the parties in pari delicto. The evidence shows beyond doubt that, in 1917, defendant, with intent to evade the laws of the United States, caused the legal title to the land to be placed in his daughter, Cecelia Peterson. There can be no question that, under such circumstances, there is no resulting trust in favor of defendant, but that the legal title being in the child through the voluntary act of the parent, with the purpose on the part of the latter by so placing it to evade the law, a court of equity will not assist him in establishing any right, either legal or equitable, to such land when the true facts are brought before it. Sell v. West, 125 Mo. 621, 46 Am. St. Rep. 508, 28 S.W. 969; Detwiler v. Detwiler, 30 Neb. 338, 46 N.W. 624; 1 Perry on Trusts (4th ed.), par. 163.

Plaintiff, however, had nothing to do with this transaction, but we must assume the trial court found he knew the legal title was in the minor's name at the time of the execution of the contract and of the bond. Knowing this, he entered into the agreement to purchase and took a bond, the condition of which was that a guardian should be appointed, and, necessarily acting through such guardian, the probate court should be induced to carry out the contract.

Was such a...