Lujan v. MacMurtrie

• Decision Date: 19 June 1963
• Docket Number: No. 6966,6966
• Citation: 94 Ariz. 273,383 P.2d 187
• Parties: Faye LUJAN, as administratrix of the Estate of Fannie A. Young, Deceased, lois Thelma Herring, Gracie Jo Smith, and Rosebud Pierson, Appellants, v. Dave MacMURTRIE and Elia P. MacMurtrie, husband and wife, Appellees.
• Court: Arizona Supreme Court

Page 187

383 P.2d 187

94 Ariz. 273

Faye LUJAN, as administratrix of the Estate of Fannie A. Young, Deceased, lois Thelma Herring, Gracie Jo Smith, and Rosebud Pierson, Appellants, v. Dave MacMURTRIE and Elia P. MacMurtrie, husband and wife, Appellees.

No. 6966.

Supreme Court of Arizona, In Division.

June 19, 1963.

Ramon R. Alvarez, Douglas, for appellants.

Fred P. Talmadge, Benson, William E. Kimble, Tucson, for appellees.

ROBERT E. McGHEE, Superior Court Judge.

Plaintiffs appeal from a summary judgment granted to the defendants, Dave and Elia P. MacMurtrie. For convenience the parties will be designated as in the Superior Court.

The plaintiff, Faye Lujan, as administratrix of the estate of Fannie A. Young, and the three individual plaintiffs, all daughters of the deceased, filed an action against the defendant, Kenneth D. Young, a brother of the three individual plaintiffs, and against the defendants, Dave MacMurtrie and Elia P. MacMurtrie, who had entered into a contract to purchase a parcel of land from the defendant, Kenneth D. Young.

The complaint in three separate counts sets forth: that the property had been the separate property of the deceased; that the deceased had deeded the property to her son, Kenneth D. Young, with the verbal understanding that the property was to be held in trust, and after her death was to be divided among Kenneth and his sisters; that the defendant had converted to his personal use personal property of Fannie A. Young in the value of Ten Thousand ($10,000) Dollars; that there was no adequate consideration for the conveyance to Kenneth; that the deceased was mentally incompetent at the time of the conveyance to Kenneth, who was aware of his mother's incompetency at the time he influenced her to do so; that 'Kenneth A. young thereafter, in contravention of his promise to his mother, Fannie A. Young, and his sisters, executed a contract for the sale of the aforesaid real property and promised to convey the land to Dave MacMurtrie and Elia P. MacMurtrie, husband and wife.'

The prayers for relief asked generally for the imposition of a constructive trust upon the property or in the the alternative for a money judgment.

The defendant, Dave MacMurtrie and Elia P. MacMurtrie, husband and wife, filed a motion for summary judgment supported by the affidavit of Dave MacMurtrie as follows:

'That he is a defendant in the above entitled action, and the husband of ELIA P. MACMURTRIE, also a defendant in said action. That said DAVE MACMURTRIE and ELIA P. MACMURTRIE, did enter into a contract for the purchase of real property, as described in said complaint, with KENNETH D. YOUNG, the owner of said property according to the records on file with the Cochise County Recorder, and with the belief and understanding that said KENNETH D. YOUNG was under no disability or limitation as to his ownership and/or ability to enter into such contract.'

Plaintiffs appeal from the summary judgment granted to the defendants MacMurtrie. The defendant, Kenneth D. Young, was not a party to the summary judgment proceeding, and is not a party to this appeal.

Plaintiffs assign as error the granting of the summary judgment, urging (1) that the affidavit was defective in that it was not based upon personal knowledge of the affiant, contained statements of belief and opinion of the affiant, and conclusions of law, and was hearsay as to the wife of Dave MacMurtrie; (2) that there existed a material issue of fact as to whether any of the purchasers were bona fide purchasers; (3) and that there existed a material issue of fact as to whether any of the parties could be placed in the status quo ante original conveyance.

Defendants take the position that the affidavit did in fact establish the defendants as bona fide purchasers, and that the placing of the parties in status quo is not an issue. Both parties apparently agree that if the defendants were not bona fide purchasers they may not acquire any interest under the contract, but disagree as to the rights of a bona fide purchaser from the grantee where the grantor was incompetent, but not so adjudged, at the time she executed the deed. Plaintiffs contend that there may be a rescission of the contract if the parties can be put in status quo. Defendants contend that the right of rescission applies only to the original grantee, but not to a subsequent bona fide purchaser. We are asked by the plaintiffs to pass upon the question, but feel that a determination of this issue is unnecessary.

The plaintiffs contend that the allegation of the complaint that Fannie A. Young was incompetent to execute the deed is sufficient to require the defendants, MacMurtrie, to carry the burden in their affidavit of showing that they acted in good faith, for consideration, and without notice of the incompetence of Fannie A. Young to execute the deed. In support of this proposition they cite Davis v. Kleindienst, 64 Ariz. 251, 169 P.2d 78, wherein it was held that in an action to reform an instrument the defendant has the burden to proceed with evidence to show he was a bona fide purchaser once the plaintiff has presented his proof showing a mistake.

Defendants take the position that the contract itself establishes the consideration; however the defendants did not attach or serve a copy with their affidavit. Rule 56(e) 16 A.R.S. provides that 'Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.' It has been held that 'The statement of the substance of written instruments of of affiant's interpretation of them or of mere conclusions of law or restatements of allegations of the pleadings are not sufficient.' Sprague v. Vogt, 8 Cir., 150 F.2d 795; 6 Moore's Federal Practice (2nd ed. 1953), § 56.22 at 2334. Since neither the contract nor its terms are before us, we are unable to say that the contract provided for a valuable consideration. The defendants have failed to show by their affidavit that they are purchasers for value.

The moving party for a summary judgment has the burden to '* * * show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' Rule 56(c) Rules of Civil Procedure. This burden rests upon the moving party regardless of whether he or his opponent would at trial have the burden on the issue. Dyer v. MacDougall, 201 F.2d 265; Plank v. Schifter, D.C., 85 F.Supp. 397; 6 Moore's Federal Practice (2nd ed. 1953) § 56.15(3).

Any inferences from the underlying facts revealed by...