Clark v. Holcomb

• Decision Date: 07 March 1927
• Docket Number: Civil 2534
• Citation: 31 Ariz. 378,253 P. 897
• Parties: SAM CLARK, Y. C. QUIROZ and MANUEL QUIROZ, O. G. FAILOR, Clerk of the Superior Court of Pima County, Arizona, and WALTER W. BAILEY, Sheriff of Pima County, Arizona, Appellants, v. J. T. HOLCOMB, Appellee
• Court: Arizona Supreme Court

253 P. 897

31 Ariz. 378

SAM CLARK, Y. C. QUIROZ and MANUEL QUIROZ, O. G. FAILOR, Clerk of the Superior Court of Pima County, Arizona, and WALTER W. BAILEY, Sheriff of Pima County, Arizona, Appellants, v. J. T. HOLCOMB, Appellee

Civil No. 2534

Supreme Court of Arizona

March 7, 1927

APPEAL from a judgment of the Superior Court of the County of Pima. W. R. Chambers, Judge. Judgment reversed.

Mr John W. Mayes, for Appellants.

Messrs Richey & Richey, for Appellee.

OPINION

JENCKES, Superior Judge.

The appellee, J. T. Holcomb, filed his bill of complaint in the court below against the appellants praying that they be enjoined from causing to be issued and executed a writ of restitution in that certain cause in said court wherein appellants Sam Clark, Y. C. Quiroz and Manuel Quiroz recovered judgment against said J. T. Holcomb for the possession of lot No. 5 in block No. 9, Clarkston town site Pima county, Arizona. We will hereinafter refer to that cause as the "possessory action," and to appellee Holcomb, as "plaintiff" and appellants Clark and Quiroz as "defendants."

A temporary restraining order was issued which, upon final hearing, was made permanent, and it is from the final decree permanently enjoining the issuance and execution of the writ of restitution that defendants prosecute this appeal.

The allegations of the complaint upon which the lower court granted the injunction are briefly and in substance as follows: Recites the judgment in the possessory action, the appeal by plaintiff to the Supreme Court (ante, p. 18, 250 P. 252), and the affirmance thereof. That since the date of the said judgment in the possessory action the defendants have been ousted of any rights in or to said premises by deed of patent from the United States to the judge of the superior court of Pima county, Arizona, as trustee of Rowood town site, conveying said premises to him, whereby he became the owner thereof. That defendants instituted an action against the said judge of the superior court of Pima county as such trustee to quiet title in themselves to said premises, in which action the judgment was that defendants (plaintiffs therein) take nothing. That if issuance of the writ of restitution be not restrained and enjoined, the buildings and improvements on said premises will be destroyed and removed, to the immediate and irreparable damage of plaintiff. That plaintiff is duly and regularly a town-site settler and claimant upon and for said premises and the owner of the improvements thereon, and is lawfully entitled to remain in possession of said premises. By his supplemental complaint the following further allegation is made: That since the filing of the original complaint plaintiff has become and is now the owner in fee of said premises by deed from the town-site trustee.

The temporary restraining order was issued without notice to the defendants, and before filing an answer to the bill of complaint the defendants moved to dissolve such temporary restraining order and to dismiss the bill for want of equity upon its face, which motion was denied by the trial court. The defendants then answered, pleading the judgment in their favor in the possessory action, and further denied that the facts pleaded by plaintiff entitled him to the injunctive relief prayed for.

The situation out of which the appeal in this case arose grew out of a controversy between the defendants on the one side and various claimants of lots in the Rowood town site in Pima county, Arizona. Defendants had located certain mining claims near Ajo in Pima county and established the town site of Clarkston thereon, leasing lots in said town site to various people. In the possessory action plaintiff (defendant therein) was held to be an assignee of one of such lessees, and that action was brought by defendants to obtain possession of the said lot from plaintiff. In the meantime a movement was started to establish the town site of Rowood, which included within its exterior boundaries the mining claims of defendants. In a proceeding instituted by the United States Land Department the defendants' said mining claims were held to be void, and in an action of ejectment brought by defendants against the trustee of the said Rowood town site the town-site location was upheld by this court upon appeal. (See Clark v. Jones, Trustee, etc., 30 Ariz. 535, 249 P. 551.) During this controversy the plaintiff stopped paying rent to the defendants, but continued to occupy the premises, and after patent issued to the trustee of the Rowood town site he succeeded in obtaining from the said trustee a deed to the lot in question, and, using such deed as the basis of his petition, now asks the court to uphold his possession and enjoin the issuance of the writ of

The question raised by this appeal is whether or not the plaintiff was entitled to the relief granted upon this state of facts, or, to state it hypothetically, may a tenant about to be dispossessed by process under a judgment in an action by his landlord for possession of the demised premises come into equity and enjoin the enforcement of the judgment by showing that subsequent thereto he has acquired a title to the said premises paramount to that of his landlord?

It is well settled that, in an action by a landlord against his tenant for the possession of the demised premises, the latter, if in undisturbed possession thereof, is estopped to deny the title of the former as it existed in him at the time of the inception of the tenancy, subject to certain exceptions which have no application here. 35 C. J. 1224 par. 565. This is expressed in the time-worn rule that "a tenant is estopped to deny his landlord's title." 1 Tiffany, Landlord and Tenant, 435. And not only is the tenant precluded from showing that there is an outstanding paramount title in a third person, but also that there is such a title in himself. Id. 464; 35 C. J. 1245, par. 600. The rule applies to the same extent in equity as at law, and the tenant cannot avoid the effect of the estoppel by bringing a proceeding in equity to restrain the action by the landlord. 1...