Francisco Villescas And Florencia Lujan De Villescas v. The Arizona Copper Company, Ltd.

• Decision Date: 16 April 1919
• Docket Number: Civil 1631
• Citation: 20 Ariz. 268,179 P. 963
• Parties: FRANCISCO VILLESCAS and FLORENCIA LUJAN DE VILLESCAS, Appellants, v. THE ARIZONA COPPER COMPANY, LIMITED, a Corporation, Appellee
• Court: Arizona Supreme Court

179 P. 963

20 Ariz. 268

FRANCISCO VILLESCAS and FLORENCIA LUJAN DE VILLESCAS, Appellants, v. THE ARIZONA COPPER COMPANY, LIMITED, a Corporation, Appellee

Civil No. 1631

Supreme Court of Arizona

April 16, 1919

APPEAL from a judgment of the Superior Court of the county of Greenlee. F. B. Laine, Judge. Affirmed.

STATEMENT OF FACTS BY THE COURT.

This action was tried upon an agreed statement of facts, prepared certified and filed as permitted by paragraph 510, Revised Statutes of Arizona of 1913. The action is an action in the nature of an action in ejectment by the grantee of the purchaser at execution sale of the interest and estate of the execution defendant, Villescas, in and to a certain portion of the Chase Creek No. 2 patented mine, situate at the town of Metcalf, in Greenlee county, Arizona, and against the execution defendant, Francisco Villescas, and his wife and their lessees. On the statement of the facts, the trial court rendered judgment for the plaintiff, and the principal defendants, Villescas and his wife, appeal. Further facts appear in the opinion.

Mr. A A. Worsley, for Appellants.

Mr Ernest W. Lewis and Mr. H. A. Elliott, for Appellee.

OPINION

CUNNINGHAM, C. J.

(After Stating the Facts as Above). The title asserted by the plaintiff is, first, a United States mineral patent granting to it the Chase Creek No. 2 Lodge mining claim. The date of the patent is November 16, 1898. Also, the plaintiff asserts that all of the right, title, claim, interest and estate of the principal defendants was sold by the marshal of the district of Arizona on execution on the twelfth day of May, 1915, to one J. C. Gatti, and that on the seventeenth day of December, 1915, the said marshal duly made, executed and delivered his deed to said J. C. Gatti, purchaser at said sale, conveying said property to said Gatti; that thereafter, on the fourth day of April, 1916, the said purchaser, J. C. Gatti, and his wife, duly conveyed, by their deed, the said property to the plaintiff, The Arizona Copper Company, Limited, the appellee.

The following agreed facts clearly show that Francisco Villescas and his wife acquired full title to the premises in question by adverse possession for ten years under the statute of limitations (paragraph 698, Rev. Stats. Ariz. 1913, by force of paragraph 2942, Rev. Stats. Ariz. 1901, as appears as paragraph 702, Rev. Stats. Ariz. 1913):

Section XIV of the agreed statement of facts on page 15, Abstract of Record, is as follows:

". . . That since the said year 1882 said Francisco Villescas and his wife, Florencia Lujan de Villescas, have been in actual possession of said premises hereinafter described, have cultivated the same, have occupied the same as their home, and returned and paid taxes upon the buildings located upon said lands during two years. . . . That said possession and occupancy of said land hereinabove mentioned has been open, exclusive, notorious, continuous, and under the claim of right hereinbefore set forth, as against the plaintiff and all the world, from the year 1882 to the present time, and that the said defendants last mentioned have at all times exercised dominion over said lands hereinafter described, and have resided on it as their home. That since the issuance of patent the relation and possession of said defendants to said The Arizona Copper Company and said The Arizona Copper Company, Limited, has been hostile."

From these facts, but one conclusion can be reached, viz., that Francisco Villescas and his wife acquired full title to said premises on the sixteenth day of November, 1908 (paragraph 702, supra), and that such property so acquired became community property.

During the year 1911 an action in the nature of an action in ejectment was commenced by appellee, against Francisco Villescas, and prosecuted to judgment. No execution issued on the judgment so recovered. Consequently no title can be based thereon. This proceeding seems to have been introduced in the case for the purpose of affecting the matter of the statute of limitations. The action was commenced too late to interfere with the running of the statute, because the period of limitation was complete before the action was commenced.

The plaintiff-appellee further asserts a title acquired through a levy, sale and deed by the United States marshal for the district of Arizona, duly conveying the premises in question to J. C. Gatti, and by Gatti to plaintiff.

The appellants attacked sucp conveyance upon two grounds: First, because the execution which was levied upon the property was issued more than five years after the rendition of the judgment, consequently the judgment was dormant, and the execution issued thereon and all proceedings following such issuance were void, including the deed to Gatti. The judgment was rendered on the eighteenth day of November, 1909. On the fifth day of April, 1915, the execution was issued, and was, on the same date, duly levied upon the premises and improvements here involved as the property of Francisco Villescas. that on the twelfth day of May, 1915, after due notice given the marshal sold all of the estate of the judgment debtor, Francisco Villescas, in and to the property, to said Gatti, and issued to said purchaser a certificate of sale, reciting the facts required by law to be recited in such deeds, which certificate was duly recorded. That thereafter, on the seventeenth day of December, 1915, the marshal made his deed conveying said property to said purchaser.

Paragraph 1353, Revised Statutes of Arizona of 1913, is the basis for the defendants-appellants' objection to the...