Collins v. Collins, Civil 3551

• Decision Date: 16 December 1935
• Docket Number: Civil 3551
• Citation: 46 Ariz. 485,52 P.2d 1169
• Parties: JULIA C. COLLINS, by Her Guardian Ad Litem, COIT I. HUGHES, Appellant, v. JAMES DEAN COLLINS, Appellee; S. L. FINLEY and C. CLAUDE DYE, Intervening Appellees
• Court: Arizona Supreme Court

52 P.2d 1169

46 Ariz. 485

JULIA C. COLLINS, by Her Guardian Ad Litem, COIT I. HUGHES, Appellant, v. JAMES DEAN COLLINS, Appellee;

S. L. FINLEY and C. CLAUDE DYE, Intervening Appellees

Civil No. 3551

Supreme Court of Arizona

December 16, 1935

APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment affirmed.

Mr Will E. Ryan, for Appellant.

Mr John W. Ray, for Appellee.

Mr Scott L. Norviel, for S. L. Finley, Intervener.

Mr John L. Gust, for C. Claude Dye, Intervener.

OPINION

LOCKWOOD, C.J.

Julia C. Collins, hereinafter called plaintiff, brought suit against James Dean Collins, hereinafter called defendant, to set aside a certain deed to the real estate involved in this action which had been executed by Hattie L. Mosher in favor of defendant under a power of attorney given Mrs. Mosher by the previous record holder of the title, Julia M. Collins, the mother of plaintiff. For some reason not shown by the abstract of record Hattie L. Mosher was brought in as a party defendant, but she defaulted and never answered. S. L. Finley and C. Claude Dye asked leave to intervene in the action on the ground that they were mortgagees of a certain portion of the property involved in the action. Leave to intervene was granted, and the case was tried to the court without a jury. Helen Streitz had also intervened, but by leave of court, her intervention was dismissed without prejudice. Findings of fact and conclusions of law were duly made and judgment was rendered dismissing plaintiff's complaint upon the merits, and in favor of interveners Finley and Dye, to the effect that their respective mortgages were good and valid liens upon the property described in the mortgages. Whereupon plaintiff appealed.

There are some fourteen assignments of error which may be separated into three groups. The first group attacks the admissibility of certain evidence; the second questions the sufficiency of the evidence to sustain the findings of the court; and the third disputes the conclusions of law which were drawn from such findings. The abstract of record shows on its face that it is very incomplete, but we will do our best to determine therefrom whether any of the assignments are well taken.

In order that we may discuss the objections properly, we state the different theories of the facts of the case from the standpoint (a) of the plaintiff, (b) of the defendant, and (c) of the interveners, and follow them with the findings made by the trial court.

It is the theory of the plaintiff that the property in question belonged to her mother, Julia M. Collins, by reason of a deed of gift from her grandmother, Hattie L. Mosher, made in 1908; that thereafter her mother gave to her grandmother a general power of attorney to handle all said property; that the grandmother executed a deed of gift in the name of her mother to her father, the defendant herein, without any consideration and without the knowledge and consent of her mother; that thereafter the latter died, so that the property, having belonged to her mother before her marriage to defendant, descended to plaintiff, but that notwithstanding this face, her grandmother and her father fraudulently mortgaged the property in favor of interveners for the benefit of the grandmother. Her conclusion from this theory is that she is entitled to have the deed executed by Mrs. Mosher in favor of defendant canceled, and that the mortgages fail, so that she will hold the property in fee simple, clear of any encumbrances.

The theory of defendant is that the property had been placed in his name, without the knowledge and consent of his wife, so that it could be better handled in case of the death of the latter, and that he had no beneficial interest therein, and he wishes to wash his hands of the whole matter, having no objection to plaintiff's claim.

The theory of the interveners is that the property was deeded by Mrs. Mosher to her daughter Julia M. Collins in 1908 for the purpose of defrauding certain creditors of the former whom she believed were about to secure a judgment against her in the courts of Arizona, and was never intended to convey the beneficial title to the daughter; that the suit of the creditors having failed, Mrs. Mosher continued to handle the property as her own in all respects, and when her daughter became of age, which she did at some time before July 20, 1915, she executed the power of attorney above referred to in favor of Mrs. Mosher so that the property could be sold or mortgaged by the latter as she desired, and that the daughter at no time claimed or ever did have any beneficial interest in the property, it being always agreed and understood between her and her mother that it was in reality the property of the mother. That in 1920, the daughter being in ill health, Mrs. Mosher, acting under the power of attorney aforesaid, deeded the property to James Dean Collins, her daughter's husband, it being the understanding and intention of both parties that he was to hold merely the legal title to the property for the convenience of his mother-in-law, the beneficial title to remain in her at all times, and that defendant personally executed the note and mortgage to intervener Dye merely as the legal holder of the title, at the request of and for the use of Mrs. Mosher, the beneficial owner of the property, while she executed the mortgage and note to intervener Finley in his name and with his knowledge and consent, but for her own benefit. That thereafter Mrs. Mosher, being heavily involved financially and knowing that she could not meet the mortgages aforesaid, conceived the plan of having her granddaughter claim the ownership of the property involved as the heir of her mother, in order to defeat the mortgages and to secure the property for the granddaughter.

Voluminous evidence, both written and oral, was submitted to the court and it made very extended findings of fact, too lengthy to be incorporated verbatim in this opinion. We therefore summarize these findings so far as they are essential to the proper consideration of the case, as follows: Plaintiff, Julia C. Collins, a minor of approximately 16 years of age at the time of the trial, is the daughter and only child of Julia Winifred Mosher Collins, now deceased and James Dean Collins, the defendant, and the granddaughter of Hattie L. Mosher. Her father and mother were married in 1914, and lived together as husband and wife until the death of her mother in May, 1920. Her grandmother, father and mother and herself were at all times on the friendliest terms. In the year 1903 Hattie L. Mosher was the owner of the property involved in this action, the same having been conveyed to her some time before that by her father, William Lount. In that year, by a deed executed by her brother as her attorney in fact, she conveyed such property, together with other property, to her mother, Julia A. Lount, the deed reciting a valuable consideration, although none in fact was ever paid by the mother. In 1907 Julia A. Lount died, leaving a will in which she devised the property in question to Hattie L. Mosher. On April 30, 1908, the latter executed a deed, conveying it to her daughter Julia W. Mosher. On October 22, 1908, a decree of distribution in the estate of Julia A. Lount was made in the probate court of Maricopa county reciting the deed from Hattie L. Mosher to Julia W. Mosher, and distributing the property in question to the latter. The petition for distribution did not mention the deed, and there is nothing in the decree showing how the court obtained knowledge thereof. Hattie L. Mosher at all times remained in possession of the property and continued to manage it, paying the taxes out of her own funds, collecting the rents and using them for her own purposes. At no time did she make any accounting thereof to her daughter. In 1914 Julia W. Mosher married and a year later gave a general power of attorney to Hattie L. Mosher. This power of attorney was in the broadest possible terms but was not recorded until April 2, 1921. In the year 1918 certain litigation arose between Hattie L. Mosher and her brother William B. Lount, on the one hand, and the city of Phoenix and the Phoenix Railway Company, respectively, on the other hand, and in this suit Hattie L. Mosher testified positively that she was the owner of the property in question. In 1916 she and her brother were involved in other litigation and she swore to the complaint therein, in which she stated that she and her brother owned certain land which includes all of that involved in the present case. Before and at the time of the trial of that action Julia Mosher Collins was visiting her mother in Phoenix, and assisted in measuring a certain irrigation ditch involved in the suit, which extended over the property described in the complaint, for the purpose of providing certain evidence for hearing in the case. At such hearing Hattie L. Mosher and Julia Mosher Collins both testified. The former swore that she and her brother were the owners of the property and had owned it for many years, while Julia Mosher Collins testified as to certain measurements of the ditch referred to, and other matters, but at no time questioned Hattie L. Mosher's ownership of the property, nor claimed that it was hers in any respect whatever. In 1920 Hattie L. Mosher, claiming to act under the power of attorney from her daughter, conveyed the property described in the complaint, together with other property which she had purchased and taken title to in the name of her daughter Julia Mosher Collins, to her daughter's husband, the defendant herein. Thereafter defendant, acting under the deed from Hattie L. Mosher, as aforesaid, made at least two conveyances of certain...