Keck v. Brookfield
| Decision Date | 30 December 1965 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 409 P.2d 583,2 Ariz.App. 424 |
| Parties | John KECK and Mary Keck, husband and wife, Appellants, v. J. N. BROOKFIELD and Ruth Brookfield, husband and wife, Buster Jenkins and Dorothy Jenkins, husband and wife, Buster Jenkins and Grace Jenkins, husband and wife, and Grace Jenkins, a single woman, Appellees. * 5. |
| Court | Arizona Court of Appeals |
Robert D. Stauffer, Tucson, for appellants.
Dunseath, Stubbs & Burch by Dean Burch, Tucson, for appellees.
John Keck and Mary Keck, husband and wife, filed suit in superior court, Pima county, seeking to recover possession of certain real property owned by them. The case was tried to the court sitting without a jury and the Kecks appeal from the portion of the judgment entered therein which decreed that the plaintiffs' interest in the property was subject to a contract to make a lease entered into between defendants as lessees and prior owners as lessors. The following facts are disclosed in the record:
In 1948 or early 1949, J. N. Brookfield and Ruth Brookfield, husband and wife, and Buster Jenkins and Dorothy Jenkins, husband and wife, went into possession of a barn under a lease agreement with the owners of a parcel of property on which the barn was located, Mr. and Mrs. Charles Stegmeier. Mr. Brookfield and Mr. Jenkins formed a partnership and established a matters factory in the barn. Ownership of the property changed several times since the defendants started their mattress factory, but they continued to operate 'brookfield's Tucson Mattress Company' on the premises, and paid rent to the various owners. In 1952, the Stegmeiers conveyed the entire property to Mr. and Mrs. Dorris.
On June 1, 1953, J. N. Brookfield and Ruth Brookfield, husband and wife, and Buster Jenkins and Dorothy Jenkins, husband and wife, as lessees, executed a lease agreement with Mr. and Mrs. Dorris, as lessors. The lease was for a one-year period ending on June 1, 1954. It provided that the $1,500 rent be paid in monthly installments of $125 and granted to the lessees an option to renew the lease on the same terms for an additional twenty-year period upon the giving of proper notice. The leased premises were described as '* * * that certain barn located at 2552 Oracle Road, Pima County, Arizona.'
On February 26, 1954, J. N. Brookfield, Buster Jenkins, and the Dorrises, in each other's presence, signed their names in the right hand margin of the lease dated to 1, 1953, for the purpose of giving effect to the following written addition to the instrument made at that time by J. N. Brookfield:
'February 26, 1954, it is agreed by all signatures attached that this lease shall run for the 20 year perios stated above and that the lessees can revoke said lease at the end of any given year by giving a 30 day written notice.'
Subsequent to the signing, but on the same occasion and in the presence of all of the signatories, Brookfield interlineated after the word 'above' the words 'minus renewal claus [sic].' Brookfield crossed out of the habendum clause of the lease the figure '1954' and inserted in its place the figure '1973.' The alteration was initially made in pencil prior to the signing and then was redone in ink after the signatures were affixed, while everyone was present.
Buster and Dorothy Jenkins were divorced in September, 1953. The divorce decree approved a separation agreement between the parties which provided that upon payment of a stipulated sum by Buster, the community interest in the mattress company was to become his sole and separate property.
Some time later, Brookfield altered the lease agreement by deleting Dorothy Jenkins' name as a lessee and substituting Grace Jenkins' name and by crossing out Dorothy's signature which had been affixed thereto in 1953. At the time of the alteration, Buster Jenkins had remarried, Grace being his second wife. Grace, however, never signed the lease.
On May 1, 1958, the Dorrises sold the property to Perry and Alvene F. Kinchloe who in turn sold the property to the plaintiffs on January 1, 1959. At the time of the sale, neither the original 1953 lease nor the altered version had been acknowledged or placed of record, but the defendants were in exclusive possession of the 'barn' and an adjoining area of approximately 2,165 square feet enclosed by a cyclone fence. In addition, the defendants were using a portion of the lessors' property to the north and south of the enclosed area for purposes of ingress and egress to the enclosure. The cyclone fence contained two gates, one at the north side and the other at the south side.
After purchasing the property, the plaintiffs fenced off an area immediately to the north and east of the mattress factory, thereby blocking the defendants' access to the north side of the cyclone fence, and placed a house trailer in this area. They instructed the defendants not to use the south gate which instruction the defendants obeyed.
At the beginning of February, 1959, the plaintiffs notified the defendants that effective March 1, 1959, the month to month lease of the defendants would terminate. The defendants were offered a new month to month tenancy at a rental of $175 per month, provided that the offer was accepted prior to February 18, 1959. The defendants did not accept but continued to send to the plaintiffs checks in the amount of $125 per month which the plaintiffs did not cash but retained in their possession.
Appellants have set forth numerous assignments of error in their briefs but we find no authority cited in support of most of the propositions advanced. Therefore we shall confine our review of the judgment rendered below to a consideration of the fundamental issue: Were appellees entitled to possession of the subject premises as found by the trial court?
Appellants take the position that the 1954 agreement between the Dorrises as lessors and Brookfield and Jenkins as lessees was not a valid lease, binding upon appellants, since it was neither acknowledged nor recorded. A.R.S. § 33-412 provides:
While the 1954 lease was not a legal conveyance of a leasehold interest, it was an enforceable contract for a lease between the parties thereto, and under the principle that equity regards that as done which ought to be done, a landlord-tenant relationship was created between them. Murphey v. Brown, 12 Ariz. 268, 277, 100 P. 801 (1909); A.R.S. § 33-437.
Appellants argue that the lease in question was void for lack of mutuality of obligation since the appellees had a right to terminate the lease upon 30 days notice. We do not agree. Mutuality is absent when only one of the contracting parties is bound to perform. Where there are mutual promises between the parties, as there are here, it is not necessary to render a particular promise by one party binding that there be a special promise on the part of the other party directed to that particular obligation. Taylor v. Kingman Feldspar...
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