MacRae v. MacRae, Civil 4276

• Decision Date: 14 April 1941
• Docket Number: Civil 4276
• Citation: 112 P.2d 213,57 Ariz. 157
• Parties: LILLIAN MacRAE, as Administratrix With the Will Annexed of the Estate of Thomas MacRae, Deceased, Appellant, v. KATHERINE V. MacRAE; MOORE, ELLIOTT AND SHIMMEL, a Copartnership Engaged in Practice of Law and Paracticing Law and Doing Business Under Firm Name and Style of MOORE, ELLIOTT AND SHIMMEL, and Consisting of JAMES R. MOORE, H. A. ELLIOTT and BLAINE B. SHIMMEL; JAMES R. MOORE and His Wife, MARY D. MOORE; BLAINE B. SHIMMEL and His Wife, HELEN W. SHIMMEL; H. A. ELLIOTT; ELIAS M. ROMLEY and His Wife, MARGARET P. ROMLEY; JOHN H. BETTS, JR., and His Wife, EDNA D. BETTS, Appellees
• Court: Arizona Supreme Court

112 P.2d 213

57 Ariz. 157

LILLIAN MacRAE, as Administratrix With the Will Annexed of the Estate of Thomas MacRae, Deceased, Appellant, v. KATHERINE V. MacRAE; MOORE, ELLIOTT AND SHIMMEL, a Copartnership Engaged in Practice of Law and Paracticing Law and Doing Business Under Firm Name and Style of MOORE, ELLIOTT AND SHIMMEL, and Consisting of JAMES R. MOORE, H. A. ELLIOTT and BLAINE B. SHIMMEL; JAMES R. MOORE and His Wife, MARY D. MOORE; BLAINE B. SHIMMEL and His Wife, HELEN W. SHIMMEL; H. A. ELLIOTT; ELIAS M. ROMLEY and His Wife, MARGARET P. ROMLEY; JOHN H. BETTS, JR., and His Wife, EDNA D. BETTS, Appellees

Civil No. 4276

Supreme Court of Arizona

April 14, 1941

APPEAL from a judgment of the Superior Court of the County of Pinal. Wm. G. Hall, Judge. Judgment affirmed.

Mr John J. McCullough, for Appellant.

Messrs Moore & Romley, for Appellees.

OPINION

LOCKWOOD, C.J.

This is an action by Lillian MacRae, as administratrix with the will annexed of the estate of Thomas MacRae, deceased hereinafter called plaintiff, against Katherine V. MacRae, hereinafter called defendant, and other defendants whom we will name as necessary, to set aside various judgments and deeds, and to declare that certain real estate belongs to the estate of Thomas MacRae, deceased.

The property involved has been before us in two previous appeals, MacRae v. MacRae, 37 Ariz. 307, 294 P. 280, and MacRae v. Betts, 40 Ariz. 454, 14 P.2d 253. This court takes judicial notice of its own records. Stewart v. Phoenix Nat. Bank, 49 Ariz. 34, 64 P.2d 101.Considering the records of these two and the present case, the facts necessary for a determination of this appeal may be stated as follows. On March 30, 1920, Thomas MacRae, the deceased, and defendant Katherine V. MacRae were married at El Paso, Texas. At that time deceased was the equitable owner of the real estate in question under the land laws of the United States, and afterwards became the legal owner through the issuance of patent. On July 1, 1921, he conveyed it by warranty deed to defendant as her sole and separate property. Thereafter defendant conveyed the property to one Betts. Both these deeds were made with the actual intention on the part of both Thomas and Katherine V. MacRae to hinder and defraud creditors. The emergency having passed, an action was brought to compel a reconveyance by Betts, each of the MacRaes claiming the property. We held in MacRae v. MacRae, supra, that neither of the MacRaes came into equity with clean hands, and refused to act, leaving the title in Betts. Thereafter defendant brought suit against Betts for damages, on the theory that he had agreed to convey the property to her and refused to do so. Basing our opinion on the previous case, we held that the suit was merely an attempt to "whip the devil around the stump" and refused to grant any relief to plaintiff in that action. The effect of this was to leave the legal title still in Betts.

Before the decision of this court in the case of MacRae v. MacRae, and on October 11, 1929, the firm of Moore, Elliott & Shimmel, who had represented defendant herein in that case, took her note for $5,000, which was the agreed value of their services, and a realty mortgage signed by her on the property involved herein. On February 13, 1933, and after the decision in MacRae v. Betts, supra, suit was brought to foreclose such mortgage, defendant and Betts being parties thereto. On March 11, 1934, judgment was rendered against defendant on the note and the mortgage was foreclosed and the property sold under sheriff's sale and a certificate issued to Elias Romley, who at that time was a partner of James R. Moore, the head of the firm of Moore, Elliott & Shimmel. Romley thereafter sold the certificate of sale to Moore & Shimmel, and sheriff's deed was duly issued to them on December 9, 1935. Moore deeded his interest to Shimmel on December 23, and on February 9, 1936, Shimmel deeded it to defendant herein, the property thus having gone the rounds and the apparent legal title eventually returning to defendant Katherine V. MacRae.

Whether because of these mutual suits or for other reasons, Thomas MacRae and Katherine V. MacRae were divorced on March 31 1930, the latter being, as ...