Johnston v. Smith

• Decision Date: 31 December 1931
• Docket Number: Civil 3046
• Citation: 39 Ariz. 337,6 P.2d 891
• Parties: JOHN JOHNSTON, Appellant, v. MARGARET SMITH, alias MARGUERITE SMITH, and E. L. GREEN, as Ex-Officio Town Site Trustee, Appellees
• Court: Arizona Supreme Court

6 P.2d 891

39 Ariz. 337

JOHN JOHNSTON, Appellant, v. MARGARET SMITH, alias MARGUERITE SMITH, and E. L. GREEN, as Ex-Officio Town Site Trustee, Appellees

Civil No. 3046

Supreme Court of Arizona

December 31, 1931

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

Mr Harry J. Valentine and Mr. Charles McClenny, for Appellant.

Mr George P. Stovall, for Appellees.

OPINION

McALISTER, C. J.

In this action John Johnston seeks to recover from Margaret Smith the north fifty feet of lot 4, block 10, of the First Northside addition to the town site of Superior, Arizona, and from a judgment for defendant the plaintiff appeals.

The facts alleged in so far as necessary to a proper understanding of the case are these: In December, 1921, a tract of land consisting of about 36 acres adjoining the original town site of Superior, Arizona, was withdrawn from the Crook National Forest Reservation for town site purposes and on April 7, 1922, under the designation, the First Northside addition to the town site of Superior, entered in the United States Land Office as a town site by the judge of the superior court of Pinal county, ex-officio town site trustee. Between that date and March 30, 1923, he caused the land to be surveyed, platted into lots, blocks and streets, and a map thereof made and recorded in the office of the county recorder of Pinal county and following this notified all occupants of lots in the town site to file within ninety days from March 30, 1923, their respective statements of claims to lots. Pursuant to this notice the plaintiff on April 24, 1923, executed and delivered his statement of claim to the north 50 feet of said lot four to H. H. Heiner, who was the representative or agent of the town site trustee, and at the same time paid said Heiner the legal fees and the purchase price therefor, which was accepted by him and has not been returned to the plaintiff by him or anyone else for him.

It appears further that on April 7, 1922, when the tract was entered as a town site, plaintiff was in possession of and actually occupying all of said lot 4, block 10, and had been for five years immediately preceding December 29, 1923; that at no time between March 30, 1923, and August 30, 1923, did defendant Smith make or deliver to the trustee or his agent Heiner, any written statement of claim to the north 50 feet of said lot four, but, notwithstanding this, the town site trustee on December 29, 1923, executed and delivered to her a deed conveying the title to said north 50 feet, and ever since August 9, 1924, thereafter, she has been in possession of the same.

It is alleged also that between April 24, 1923, and August 30, 1923, plaintiff frequently requested said H. H. Heiner and Stephen H. Abbey, town site trustee, to set a time for hearing at which he could make proof of the facts set out in his statement of claim but that all these requests were refused; that there was a want of intrinsic fairness and honesty in these refusals, the plaintiff being given at no time an opportunity to make proof of his claim as required by paragraph 5292, Revised Statutes of 1913 (Civil Code); that with the intent to defraud this plaintiff out of said lot the defendant Smith prior to December 29, 1923, wilfully and dishonestly, knowing the same to be false, represented to said Heiner, as agent of the town site trustee, that plaintiff was an alien, ineligible to receive the title to said lot from the said trustee and hold it; that she made oral claim only to the lot knowing she was not then an occupant or in possession thereof and had never been but that plaintiff at the time and for years prior thereto had occupied and been in actual possession of it.

The defendant demurred to this pleading upon several grounds, one of which was that it appeared upon its face that the cause of action therein alleged was barred by the provisions of paragraph 695, Revised Statutes of 1913 (Civil Code), in that it disclosed that the defendant Smith had been in peaceful and adverse possession of the north 50 feet of said lot four, under title or color of title for more than three years next preceding the commencement of the suit on December 11, 1928, and, hence, that the cause of action had accrued more than three years prior to that date. This demurrer was sustained and judgment for the defendant followed, the plaintiff having announced that he would not amend further but would stand upon his amended complaint. It is from this judgment that the appeal is prosecuted.

The only assignment is that the court erred in sustaining the demurrer to the amended complaint and in rendering judgment for the defendant. This assignment is based upon the contention that the three-year statute of limitations does not apply for the reason that the trustee's deed to defendant Smith is void, not voidable, and, therefore, constitutes neither title nor color of title within the meaning of this limitation statute which reads as follows:

"695. Every suit to be instituted to recover real property as against any person in peaceable and adverse possession thereof under title or color of title, shall be instituted within three years next after the cause of action shall have accrued and not afterward.

"696. By the term 'title' as used in the preceding section, is meant a regular chain of transfer from or under the sovereignty of the soil, and by 'color of title' is meant a consecutive chain of such transfer down to such person in possession without being regular, as if one or more of the memorials or muniments be not recorded or not duly recorded or be only in writing, or such like defect as may not extend to or include the want of intrinsic fairness and honesty, or when the party in possession shall hold the same by a land warrant or land scrip, with a chain of transfer down to him in possession."

It is the plaintiff's position that since the complaint discloses that at the time of the entry of the land in question for town site purposes and for several years prior thereto he was the occupant of the land in dispute and that he filed his statement of claim thereto within the proper time after entry, paid the necessary fees and offered on numerous occasions to make the proof required by statute, the trustee was, under the town site laws, without any authority whatever to transfer the lot to anyone other than himself and, hence, that his deed conveying it to the defendant, who, according to the complaint, at no time occupied it or ever filed any statement of her claim thereto with the trustee, was wholly void and, therefore, did not constitute title, or even color of title, as prescribed in paragraphs 695 and 696, supra. This contention grows out of the construction appellant places upon the federal statute governing the manner of entering public land for town site purposes and the law of this state regulating the method of carrying into effect the trust thus created. The appropriate sections of the act of Congress referred to, numbers 2387 and 2391, Revised Statutes of United States, 14 U.S. Stats. at Large 541, 8 Fed. Stats. Ann. 641, 651 (43 U.S.C.A., §§ 718 and note, 721), read as follows:

"Sec. 2387. Whenever any portion of the public lands have been or may be settled upon and occupied as a town site, not subject to entry under the agricultural preemption laws, it is lawful, in case such town be incorporated, for the corporate authorities thereof, and, if not incorporated, for the judge of the county court for the county in which such town is situated, to enter at the proper land-office, and at the minimum price, the land so settled and occupied in trust for the several use and benefit of the occupants thereof, according to their respective interests; the execution of which trust, as to the disposal of the lots in such town, and the proceeds of the sales thereof, to be conducted under such regulations as may be prescribed by the legislative authority of the State or Territory in which the same may be situated."

"Sec. 2391. Any act of the trustees not made in conformity to the regulations alluded to in section twenty-three hundred and eighty-seven shall be void."

The statutes regulating the manner in which the trust shall be executed in this state, which were in force when the town site in question was entered, namely, title 53, Revised Statutes of 1913 (Civ. Code 1913, pars. 5286-5318), make it the duty of the trustee to whom the town site patent is issued "to dispose of and convey the title to such lands, or to the several blocks, lots, parcels or shares thereof to the persons hereinafter specified" (paragraph 5286); and to give him the information he must have to perform this duty it requires him to cause to be made a plat or map of the town site, which shall be submitted to and approved by the board of supervisors and then recorded in the office of the county recorder, and to follow this by "giving notice of the entry of the land and requiring every claimant of any lot to file a statement of his claim in the office of the trustee on or before a specified day, which day shall be ninety days from the first publication" (paragraph 5290). Thereupon it provides what this statement shall contain and then directs that within sixty days after the time for filing it has passed the claimant shall make proof of the facts alleged in his statement before the trustee upon whom the duty of hearing it is enjoined, and if the proof complies with the statute the trustee shall enter a decision to that effect and then execute a good and sufficient deed conveying the lot to the claimant.

Under the act of Congress the trustee takes the legal title to a town site in his official capacity and holds it in trust for those who...