Hall v. Weatherford

• Decision Date: 19 September 1927
• Docket Number: Civil 2527
• Citation: 32 Ariz. 370,259 P. 282
• Parties: LULU R. HALL, Appellant, v. J. W. WEATHERFORD and MARGARET J. WEATHERFORD, Appellees
• Court: Arizona Supreme Court

259 P. 282

32 Ariz. 370

LULU R. HALL, Appellant, v. J. W. WEATHERFORD and MARGARET J. WEATHERFORD, Appellees

Civil No. 2527

Supreme Court of Arizona

September 19, 1927

APPEAL from a judgment of the Superior Court of the County of Coconino. J. E. Jones, Judge. Judgment reversed with instructions.

Mr. C B. Wilson, for Appellant.

Mr. E S. Clark, and Mr. Frank Harrison, for Appellees.

OPINION

LOCKWOOD, J.

John W Weatherford and Margaret J. Weatherford, his wife, hereinafter called plaintiffs, brought suit against Lulu R. Hall, hereinafter called defendant, to quiet title to certain premises in Flagstaff, Arizona, and to recover possession of the same from the defendant. The case was tried before a jury, which returned a general verdict, finding the issues for defendant, and that she was entitled to the possession of the premises. Plaintiffs moved for judgment non obstante veredicto, which motion, after due consideration, was granted, and findings of fact and conclusions of law were filed by the court, on which judgment was rendered in favor of plaintiffs. A motion for new trial was made, which was overruled on the twenty-sixth day of October, 1925, and on the twenty-third day of March, 1926, defendant gave notice of appeal from the final judgment and from the order denying the motion for new trial.

The first question for our consideration is one of procedure. The appeal was taken from both the final judgment and the order overruling the motion for new trial. The notice of appeal was filed within six months from the rendition of judgment, but more than sixty days after the motion for new trial was overruled. Paragraph 1233, Revised Statutes of Arizona 1913, Civil Code, reads as follows:

"An appeal may be taken from a final judgment of the superior court in a civil action, or special proceeding commenced in such court, at any time within six months after the rendition of such judgment, and from any other judgment or order at any time within sixty days, after the making of such order." (Italics ours.)

It is contended by plaintiffs that while it is true the appeal from the judgment is timely, that from the motion for new trial is too late, and that therefore, under the repeated decisions of this court, we can consider on the appeal only the judgment-roll, since, it is contended, the transcript of the reporter's notes is not properly before the court.

It is of course obvious that the appeal from the order denying the motion for new trial was made too late and the court cannot therefore consider it. We do not think, however, this in any way affects defendant's right to present the question of the sufficiency of the evidence or the correctness of the court's ruling in denying the motion. Paragraph 1231, Revised Statutes of Arizona, Civil Code, reads as follows:

"Upon appeal from a final judgment the court shall review all orders and rulings made by the court below, which are assigned as error, whether a motion for a new trial is made or not. If a motion for a new trial is made and denied, the court may, on appeal from the final judgment, review the action of the court below in denying the motion, though no appeal be taken from the order denying the motion for a new trial; provided, that on appeal from a final judgment the Supreme Court shall not consider the sufficiency of the evidence to sustain a verdict or judgment in an action tried before a jury unless a motion for a new trial shall have been made."

It will be seen therefrom that, if a motion for new trial is made and denied, as it was in this case, it is not necessary to appeal from the order denying in order to review the questions presented in the motion.

There are seven assignments of error. The first four go to the exclusion of certain testimony. The last three in effect challenge the sufficiency of the evidence to sustain the judgment. In order that we may consider them intelligently, it is necessary that we make a brief statement of facts. Taking the evidence on behalf of plaintiffs in the most favorable light to them, these facts are as follows:

Plaintiff John W. Weatherford purchased a lot in Flagstaff, Arizona, in 1890. At that time he was a single man. Four years later he and plaintiff Margaret J. Weatherford were married. Some time thereafter they purchased a lot adjoining the first mentioned and constructed on the two lots a hotel, of which they have been the owners ever since. During part of this time the hotel was operated by plaintiffs, and during the remainder it has been leased by them to various parties. In 1919 plaintiff John W. Weatherford executed a written lease covering said premises in favor of defendant, for a term of five years from May 7, 1920, she knowing at the time he was a married man. By its terms defendant was required to pay as rent $18,000, to contribute $6,500 to improvements to be made on the property and eventually reverting to plaintiffs, and to keep the hotel in repair. She was also to provide all furniture required for the operation of the hotel, but this was to remain her property. The lease included the following clause:

"It is further agreed that the party of the second part, upon the expiration of this lease, shall have the option to renew the same for a like period at a price to be agreed upon, and shall have the preference right to the same at any price which may be agreed upon by the party of the first part."

Plaintiff Margaret J. Weatherford did not sign the lease. Her testimony in regard to her knowledge of and connection with its execution, reduced to narrative form, is substantially as follows:

"I think I first met Mrs. Hall at Ingleside some time before November, 1919. On that occasion there was a discussion about the terms of this lease that was later executed in November, 1919. I cannot say that I did or did not take any part in the discussion. I cannot remember. I cannot remember if I did or did not make any protest or objection to them. The next time I met Mrs. Hall was down at Mr. Pugh's office and on that occasion the proposed lease was discussed. I don't think I was asked anything about it and I don't think I said anything about it. I do not remember whether it was read or not, but I do not say it wasn't. I was present at the signing of the lease, and it was signed by Mr. Weatherford and Mrs. Hall in my presence, but I was not asked to sign the lease and wasn't asked anything about it by either of the parties, and I said nothing about it. I knew from the previous discussion and the discussion there that the lease involved the property known as the Weatherford Hotel. I think I discussed it with Mr. Weatherford, but I do not know whether it was in Mrs. Hall's presence or not. I did not read the lease before it was signed, and have absolutely no recollection as to when I first read it. I discussed it before the improvements were made and after I learned they were to be made I did not say anything to Mrs. Hall about it."

Some months before the lease expired defendant took up the question of a renewal with plaintiffs. At that time Mrs. Weatherford objected to any renewal and so notified defendant, but shortly after she had given such notice, plaintiff John W. Weatherford executed a new lease to defendant at an increased rental. Mrs. Weatherford never at any time, either by silence or otherwise, acquiesced in or consented to the second lease, but at all times strenuously objected thereto.

Plaintiff's position is that the property in question was community property; that under the provisions of paragraph 2061, Revised Statutes of Arizona 1913, Civil Code, since Mrs. Weatherford did not sign the lease of 1919 it was void and in no manner binding on her; that defendant, after going into possession thereunder, was merely a tenant at will; and that plaintiffs could recover possession of the premises at any time. Defendant, on the other hand, while admitting that ordinarily this would be true, claims plaintiff Margaret J. Weatherford is estopped by her conduct from questioning the validity of the lease on this ground.

The first question of substantive law for our determination is whether or not the testimony of Margaret J. Weatherford shows that she is estopped from maintaining that the lease was invalid because she failed to sign it. This court discussed the question of estoppel in pais in the case of Bryan v. Pinney 3 Ariz. 412, 31 P. 548. In that case certain property of a decedent was sold under order of the probate court. The purchaser assigned the certificate to a third party, who was in possession for more than three years, and made valuable improvements on the premises. Decedent's widow and her grantee had full knowledge of the sale under the order of the probate court, and of the improvements placed on the property by the assignee of the purchaser, but made no objections thereto. It was claimed that, although the decree ordering the sale of the property and the sale itself might be nullities, yet the widow and her grantee, knowing that the claim of the defendant to the property rested on that sale, by remaining silent and allowing defendant to place valuable improvements thereon, were estopped from asserting title. This court, in discussing the question of equitable estoppel, quoted approvingly from Dickerson v....