Byers v. Wik
| Decision Date | 10 September 1991 |
| Docket Number | CA-CV,No. 1,1 |
| Citation | 169 Ariz. 215,818 P.2d 200 |
| Parties | Robert W. BYERS, as Trustee under and on behalf of the American Security Investments Trust, and The American Security Investments Trust, Plaintiffs-Appellants, v. Martin WIK and Paula Wik, Defendants-Appellees. 89-576. |
| Court | Arizona Court of Appeals |
Appellants Robert W. Byers and the American Securities Investments Trust (the Trust) appeal from a judgment dismissing their complaint to quiet title to a parcel of real property in Maricopa County which appellees Martin and Paula Wik (the Wiks) purchased at an execution sale. This appeal presents the following issues: (1) whether real property transferred by a judgment debtor to a third party, subject to a judgment lien, may be levied upon in the hands of the third party and sold pursuant to A.R.S. § 12-1553; (2) whether a third party to whom a judgment debtor has transferred real property subject to a judgment lien has a due process right to actual notice of a sheriff's sale of the property, where the third party's identity and address are easily ascertainable from the public record; and (3) whether the Trust was required to tender to the Wiks the redemption price established by A.R.S. § 12-1281 et seq. as a condition precedent to bringing the instant action to quiet title to the real property.
The facts necessary to our decision are largely undisputed. On July 1, 1987, the former spouse of Charles M. Byers recovered a judgment against him. Pursuant to A.R.S. § 33-961 et seq., Ms. Byers' judgment was recorded on July 7, 1987, in the Office of the County Recorder of Maricopa County.
Charles M. Byers owned a parcel of real property on North Cave Creek Road in Phoenix. On August 1, 1987, he executed a document entitled "The Establishment of American Security Investments an Irrevocable Trust." The trust document stated that Byers "hereby irrevocably transfer[s]" the property into the American Security Investments Trust. The document recited that the purpose of the Trust was to provide an income for Charles M. Byers' three daughters. The document designated appellant Robert W. Byers, Charles M. Byers' younger brother, as managing trustee. It further provided in pertinent part:
The duties of the Managing Trustee are to manage the property, collect funds as they are due, and to disburse the excess funds as they become available.
As long as no outright theft occurs, the Managing Trustee has no personal responsibility for the condition of the Trust.
Charles M. Byers will have the first option on leasing the premises involved in this Trust. The terms and conditions will be as approved by the Managing Trustee.
On August 11, 1987, Charles M. Byers executed a warranty deed conveying the Cave Creek Road property to "American Security Investments (a Trust)." The deed reflected the address of the grantee as 2712 64th Pl. N., St. Petersburg, Fla. 33702. On September 2, 1987, this deed was recorded in the Office of the County Recorder of Maricopa County.
On June 28, 1988, the clerk of the superior court issued a writ of general execution in aid of Ms. Byers' judgment against Charles M. Byers. Pursuant to the writ, on July 28, 1988, the Sheriff of Maricopa County levied on the property previously conveyed by Charles M. Byers to the Trust. In August of 1988, the sheriff published a "Sheriff's Notice of Sale of Real Property on Execution" in four successive issues of the Arizona Business Gazette. The notice of sale stated that the property on which the sheriff had previously levied execution would be sold at public auction on September 1, 1988. No actual notice of the execution sale was provided to Charles M. Byers or to the Trust.
At the sheriff's sale on September 1, 1988, appellees Martin and Paula Wik purchased the property for $90,500.00. This covered the full amount of the judgment with interest and costs, and left an overpayment of $2,836.07. A "Sheriff's Certificate of Sale of Real Estate on Execution" was recorded in the Office of the Maricopa County Recorder on September 20, 1988. After expiration of the six month period of redemption, see A.R.S. § 12-1282(B), the Maricopa County Sheriff executed a sheriff's deed conveying the property to the Wiks. The sheriff's deed was recorded in the Office of the Maricopa County Recorder on March 31, 1989.
The Trust brought the instant quiet title action against the Wiks and the Maricopa County Sheriff on May 1, 1989. The complaint did not allege that the Trust had tendered any amount to the Wiks to redeem the property.
The Wiks moved to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted. The trial court granted the motion to dismiss. The trial court stated in part as follows:
There is no allegation that the sheriff did not comply with A.R.S. § 12-1621(A).
I have carefully considered all of the authorities presented by counsel and believe that pursuant to the reasoning of Cagle v. Carlson, 146 Ariz. 292, 705 P.2d 1343 (App.1985), cert. denied 476 U.S. 1108 [106 S.Ct. 1956, 90 L.Ed.2d 365] (1986), and because of the settlor-trustee and sibling relationship between Charles W. Byers [sic] and Robert W. Byers and further because the Court cannot hold that A.R.S. § 12-1621(A) is unconstitutional, Defendants' Motion to Dismiss is GRANTED.
The trial court entered a formal judgment in accordance with its ruling on August 21, 1989. The Trust filed its notice of appeal on September 21, 1989, one day late. The Trust later moved for a delayed appeal pursuant to Rule 60(c), Arizona Rules of Civil Procedure, and City of Phoenix v. Geyler, 144 Ariz. 323, 697 P.2d 1073 (1985). Appellees Wik did not oppose the motion. By minute entry of March 15, 1990, the trial court granted the motion. We have jurisdiction pursuant to A.R.S. § 12-2101(B).
We first consider the Trust's contention that the sheriff's execution sale could not have transferred ownership of the property to the Wiks. The Trust cites Freeman v. Wintroath Pumps-Division of Worthington Corp., 13 Ariz.App. 182, 475 P.2d 274 (1970), for the proposition that a judgment debtor has full power to transfer his land subject to the judgment lien. The Trust asserts that a judgment lien only gives the judgment creditor the right to levy on land actually owned by the judgment debtor. Because Charles M. Byers had transferred his entire interest in the property to the Trust by the time of the levy of execution, the Trust argues, the sheriff had no power to sell the property to the Wiks, and the Wiks acquired no interest in the property as a result of the execution sale. The Trust admits that the property remained subject to the judgment lien after Charles M. Byers transferred the property, but contends this meant only that the judgment creditor could have brought an action to foreclose the judgment lien pursuant to A.R.S. § 12-1635.
The Trust's analysis is fatally flawed in several respects. It is true that the perfection of a judgment lien does not disable the judgment debtor from transferring his real property subject to the lien. However, the Trust overstates the significance of this principle. Contrary to the Trust's argument, a judgment debtor does not immunize his liened property from execution by transferring it to a third party. A.R.S. § 12-1553(2) provides:
A general execution shall state the amount of the judgment and costs and the amount due thereon, and shall require the officer:
....
(2) If the judgment is a lien upon real property, then to satisfy the judgment out of the real property belonging to the judgment debtor on the day when the judgment became a lien or at any time thereafter.... [Emphasis added.]
In Freeman, we stated:
A judgment lien is a right given the judgment lien creditor to have his claims satisfied by the seizure of the land of his judgment debtor. The judgment lien gives the creditor no estate of any kind in the land. It is merely a right to levy on any such lands for the purpose of satisfying the judgment to the exclusion of the rights of others that may have attached subsequent to the judgment lien.
13 Ariz.App. at 184, 475 P.2d at 276 (emphasis added).
Arizona Revised Statutes § 12-1553(2) makes it clear that where a judgment lien has been perfected against the judgment debtor, the judgment creditor may satisfy the judgment by executing on any real property that belonged to the judgment debtor when the judgment was recorded. The statute's plain language mandates this result even if the judgment debtor later transfers the liened real property to a third party. It is this feature that makes the judgment lien a true lien, and hence a means of collection that cannot easily be frustrated. Cf. Boone v. Grier, 142 Ariz. 178, 688 P.2d 1070 (App.1984) (). Cf. Walker v. Davies, 113 Ariz. 233, 550 P.2d 230 (1976) ().
Steinfeld v. Copperstate Mining Co., 37 Ariz. 151, 290 P. 155 (1930), and Burney v. Lee, 57 Ariz. 41, 110 P.2d 554 (1941), do not support the Trust's contention that a writ of execution cannot reach property transferred by the judgment debtor after the lien of judgment has attached. Those cases concerned property that the judgment debtors did not own at the time the judgments in question were recorded or thereafter. By contrast, in this case there is no...
To continue reading
Request your trial
-
Cal X–Tra v. W.V.S.V.
...... ¶ 71 WVSV is not entitled to equitable relief unless it played no role in obtaining the fraudulent judgments—either actively, through participation, or passively, through knowledge and acquiescence. See generally Byers v. Wik, 169 Ariz. 215, 224, 818 P.2d 200, 209 (App.1991) (“He who seeks equity must do equity.”). Here, the record lends support to the conclusion that WVSV had an active role to the extent that Breycliffe (a member and assignor of WVSV) directly participated in the breach of Phoenix Holdings' ......
-
Metro. Cas. Ins. Co. v. Lammers
...... A "judgment" is a clearly defined judicial decree that results in a number of specific rights, including the right to execute on the judgment, see , e . g ., Byers v . Wik , 169 Ariz. 215, 218-19 (Ariz. App. Ct. 1991) ( citing Ariz. Rev. Stat. § 12-1553(2)), provide a Page 7 lien on real property, see , e . g ., Freeman v . Winthroath Pumps-Div . of Worthington Corp ., 475 P.2d 274, 276 (Ariz. Ct. App. 1970), full faith and credit in another state, ......
-
Lewis v. Debord
......§ 33–961(A)(1)–(5). ¶ 8 Once a judgment has been recorded pursuant to § 33–961(A), “the judgment creditor may satisfy the judgment by executing on any real property” that is then owned or later acquired by the judgment debtor. Byers v. Wik, 169 Ariz. 215, 218–19, 818 P.2d 200, 203–04 (App.1991) ; Sysco Ariz., 235 Ariz. 164, ¶ 6, 330 P.3d at 355 ; see also A.R.S. § 33–964(A). “The general rule is that once a judgment lien has attached to the land, it remains until legally removed.” Freeman v. Wintroath Pumps–Div. ......
-
Lewis v. Debord
...may satisfy the judgment by executing on any real property” that is then owned or later acquired by the judgment debtor. Byers v. Wik, 169 Ariz. 215, 218–19, 818 P.2d 200, 203–04 (App.1991); Sysco Ariz., 235 Ariz. 164, ¶ 6, 330 P.3d at 355; see also A.R.S. § 33–964(A). “The general rule is ......