Hixon v. Davis

• Decision Date: 30 December 1935
• Docket Number: Civil 3636
• Citation: 46 Ariz. 543,52 P.2d 1166
• Parties: POPE HIXON and BELLE HIXON, His Wife, and JAMES BOLEN, Appellants, v. J. A. DAVIS and ELIZA L. DAVIS, His Wife, Appellees
• Court: Arizona Supreme Court

52 P.2d 1166

46 Ariz. 543

POPE HIXON and BELLE HIXON, His Wife, and JAMES BOLEN, Appellants, v. J. A. DAVIS and ELIZA L. DAVIS, His Wife, Appellees

Civil No. 3636

Supreme Court of Arizona

December 30, 1935

APPEAL from a judgment of the Superior Court of the County of Maricopa. Fred W. Fickett, Judge. Judgment affirmed.

Mr Jno. C. Lee, for Appellants.

Mr Richard F. Harless, Mr. Terrence A. Carson and Mr. I. F Wolpe, Jr., for Appellees.

OPINION

LOCKWOOD, C.J.

J. A Davis and Eliza L. Davis, his wife, hereinafter called plaintiffs, brought suit against Pope Hixon and Belle Hixon, his wife, hereinafter called defendants, and James Bolen, a tenant of defendants, alleging, in substance, that plaintiffs were the owners of certain real property in Maricopa county and entitled to the immediate possession thereof; that defendants were tenants of such premises by sufferance of the plaintiffs; and that, although repeatedly notified to quit possession thereof, they had failed to do so. The prayer for relief was that the defendants and Bolen be adjudged guilty of forcible and unlawful detainer and that plaintiffs recover possession of the premises. Defendants answered, denying that they were tenants of plaintiffs, and alleging that they were and had been the owners and in possession of the land in controversy since about the 26th day of January, 1929, by virtue of a certain contract of purchase and sale.

The case came to trial before the court sitting without a jury, and evidence, both oral and written, having been introduced, the court found that the defendants were guilty of forcible detainer and rendered judgment against them and in favor of plaintiffs for immediate possession of the premises, whereupon this appeal was taken.

There are some nine assignments of error. Most of these, under the rules and decisions of this court, are not sufficient to present any questions for our determination; but we think there are two which may be considered, the first going to the form of the action and the second to the merits of the controversy. The first question is whether on the pleadings and evidence the court could enter a judgment in forcible detainer, it being the contention of the defendants that the only issue raised thereby was as to who held the title to the land. The plaintiffs, in support of their complaint, offered evidence that defendants went into possession of the premises in 1929, and then introduced a quitclaim deed from defendants to plaintiffs which covered the land and which had been delivered to plaintiffs in March, 1934, and by them duly recorded, together with proof that defendants had, after such recording, been notified repeatedly, in writing and orally, to surrender possession of the premises. It was their theory of the law of the case that where a grantor is in possession of premises and while in such possession deeds them to another person and thereafter retains possession thereof, after a demand to surrender them has been made by the grantee, he is a tenant at sufferance and forcible detainer is the proper remedy to recover possession. We are of the opinion that this is a correct statement of the general principle of law and that plaintiffs, by showing the facts above referred to, made a prima facie case in forcible detainer. Colvin v. Colvin, 24 Ga.App. 630, 101 S.E. 586; Sanders v. Richardson, 14 Pick. (Mass.) 522; Bush v. Fuller, 173 Ala. 511, 55 So. 1000; Taylor v. O'Brien, 19 R.I. 429, 34 A. 739; Work v. Brayton, 5 Ind. 396; New York Life Ins. & Trust Co. v. Cutler, 3 Sandf. Ch. (N.Y.) 176, 177; Bennett v. Robinson, 27 Mich. 26; Brown v. Smith, 83 Ill. 291; section 4313, Rev. Code 1928.

The answer of defendants, while admitting the facts stated aforesaid, attempted to avoid them by showing that the deed in question had been in the custody of a third party, under certain instructions in regard to its delivery, and that it had been delivered in violation of those instructions, the plaintiffs well knowing such to be the case.

If the delivery of the deed was in violation of the terms of the deposit with the escrow holder it, of course, conveyed no title to plaintiffs. Baker v. Best, 107 S.W. 1192, 33 Ky. Law Rep. 1; Dunlevy v. Fenton, 80 Vt. 505, 68 A. 651, 130 Am. St. Rep. 1009; Grindle v. Grindle, 240 Ill. 143, 88 N.E. 473. And if they had no title to the premises, the basis upon which plaintiffs claim their right to possession having failed, the action would necessarily fail. We are of the opinion that the pleadings and the evidence did properly present a case wherein the court had jurisdiction to determine the question of whether plaintiffs or defendants were entitled to the possession of the land, and the allegations and proof in regard to the title were merely incidental to the question of the right of possession. Lencki v. Schultz, 198 Ill.App. 294; Potts v. Magnes, 17 Colo. 364, 30 P. 58; 26 C.J. 859, and cases cited.

This leads us to the consideration of the case on its merits, the vital question being whether or not the deed in question was legally delivered to plaintiffs. In so determining, it is necessary that we state the facts of the case as shown by the evidence construed, under our well-known rule, as strongly in favor of plaintiffs as may reasonably be justified.

On the 26th day of January, 1929, plaintiffs were the owners of 100 acres of land situated in Maricopa county, 20 acres of which comprise the premises in controversy in this action. All of said land was encumbered by a blanket mortgage in favor of the Federal Land Bank of Berkeley, California, dated May 1 1923. It was originally in the sum of $8,200, but at the time of making the contract hereinafter referred to the principal had been reduced to approximately $7,600. On the date first mentioned, plaintiffs and defendants entered into a contract of purchase and sale of the 20 acres involved herein. The contract set up the purchase price as $5,000, to be paid $1,000 in cash and the remaining $4,000 in annual installments of $800 each; $2,000 bearing interest at the rate of 5 per cent. per annum, and the remainder at the rate of 8 per cent. The agreement then recited the existence of the Federal Land Bank mortgage above referred to and...