Nicholas v. Giles

• Decision Date: 06 April 1967
• Docket Number: No. 7994,7994
• Parties: Clarence M. NICHOLAS and Mary Ida Nicholas, his wife, Appellants, v. Ray I. GILES and Marie Giles, husband and wife, Appellees.
• Court: Arizona Supreme Court

Page 398

426 P.2d 398

102 Ariz. 130

Clarence M. NICHOLAS and Mary Ida Nicholas, his wife, Appellants, v. Ray I. GILES and Marie Giles, husband and wife, Appellees.

No. 7994.

Supreme Court of Arizona, In Banc.

April 6, 1967.

John M. Levy, Emmett R. Feighner, (Deceased), Phoenix, for appellants.

Gibbons, Kinney & Tipton, Phoenix, for appellees.

STRUCKMEYER, Justice.

On October 6, 1960, plaintiffs-appellees brought a quiet title action against defendants-appellants, claiming title to a vacant lot in the City of Phoenix, Arizona. The trial court, sitting without a jury, found, consistent with Nicholas v. Fowler, 89 Ariz. 7, 357 P.2d 331, that the tax deed was void because of the failure of the underlying affidavit to show that plaintiffs used due diligence, as required by A.R.S. § 11--743, in notifying the previous owners of their intention to take the tax deed. The trial court also found that 'plaintiffs have had peaceable possession of the property involved since recordation of said deed (September 23, 1955) and have paid taxes on the property involved each year since June 17, 1955, up to and including the year 1961.' Judgment was rendered in favor of the plaintiffs, and the defendants have appealed.

The evidence establishes that on July 27, 1954, plaintiffs purchased the property at a tax sale and received from the superintendent of streets a 'Certificate of Sale of Property' describing the vacant lot in question. One year later, on July 27, 1955, they posted on a stake on the lot a 'Notice Of Intention To Apply For Deed.' On September 23, 1955, plaintiffs recorded their deed from the superintendent of streets and thereafter checked the property from time to time to see that it was in clean condition and that the service station next door was not using the lot without permission. Tax receipts show that the property was taxed in plaintiffs' names for the 1956 and subsequent taxes, and that plaintiffs paid the taxes for the years 1956 to 1961, inclusive. The 1960 tax receipt shows that it was issued on October 10, 1960, four days after the complaint in this case was filed, but more than two years before the trial.

Josephine Hanner, a relator and friend of defendants, testified that she was in touch with defendants (who at that time were living in Oregon) and that she notified defendants in 1955 that the tax deed had issued. Defendants engaged a lawyer to get the property back. This lawyer talked to plaintiffs who told him that they intended to keep the property. Defendants' knowledge of the fact that a tax deed had issued is unconstradicted.

There are three statutes which ostensibly might have some application to this case. A.R.S. § 12--523 provides:

'A. An action to recover real property from a person in peaceable and adverse possession under title or color of title shall be commenced within three years after the cause of action accrues, and not afterward.

'B. 'Title' means a regular chain of transfer from or under sovereignty of the soil. 'Color of title' means a consecutive chain of such transfer down to the person in possession without being regular, as if one or more of the memorials or muniments is not recorded or not duly recorded or is only in writing, or such like defect as does not extend to or include the want of intrinsic fairness and honesty, or when the party in possession holds the real property by a land warrant or land scrip, with a chain of transfer down to him in possession.'

A.R.S. § 12--524 provides:

'An action to recover a lot located in a city or town from a person having a recorded deed therefor, who claims ownership and has paid the taxes thereon, shall be brought within five years after the cause of action accrues, and not afterward, provided that the person against whom that action is brought, by himself or his grantors, has claimed ownership thereof and has paid the taxes thereon for at least five consecutive years next preceding the commencement of such action.'

A.R.S. § 12--525 provides:

'A. An action to recover real property from a person in peaceable and adverse possession, and cultivating, using or enjoying the property, and paying taxes thereon, and claiming under a deed or deeds duly recorded, shall be commenced within five years after the cause of action accrues, and not afterward.

'B. This section shall not apply to anyone in possession of land, who in the absence of this section would claim title through a forged deed, and no one claiming under a forged deed or a deed executed under a forged power of attorney shall be allowed the benefits of this section.'

Both A.R.S. § 12--525 and § 12--525 were adopted almost verbatim from the Texas Statutes. In Land v. Banks (Tex.Civ.App.), 241 S.W. 299, 305 the court said:

'* * * before a party can successfully interpose the 3-year statute of limitation, based upon a mere tax collector's deed * * * he must prove that all the legal requisites to a valid tax sale were complied with; otherwise he can have neither title nor color of title under the 3-year statute, regardless of the fact that all other elements, such as the possession and payment of taxes, might be present.'

We agree, and therefore hold that a void tax deed cannot be made the basis for invoking § 12--523, supra.

In considering defendants' argument that § 12--525 has no application to the facts of this case, § 12--521, defining 'adverse possession' as 'an actual visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another,' must be given effect. While we have held that there need not be actual occupancy of the land, nor residence, nor cultivation (where premises were used for storage), and that 'what acts may or may not constitute a possession are necessarily varied, and depend upon the circumstances of the case,' Spillsbury v. School District #19, 37 Ariz. 43, 48, 288 P. 1027, we have not held that one who occasionally drives by a vacant city lot is in visible possession thereof.

'* * * a claimant, relying upon this statute, must show such open, notorious, continuous, and visible adverse occupation and use under claim of ownership as would constitute that adverse possession, use, or enjoyment by which either the presumption or the fact of notice and acquiescence upon the part of the title owner would arise to bar his right.' Lewis v. Farrah, 65 Ariz. 320, 322, 180 P.2d 578.

In Collins v. Dye, 94 F.2d 799, the United States Court of Appeals for the Ninth Circuit, interpreting A.R.S. § 12--521, said:

'The general allegation of adverse possession by appellant is made futile by the further averment that the real estate in question is vacant and unimproved and not fenced or enclosed. To constitute adverse possession * * * there must be 'an actual and visible appropriation of the land, * * *"

Accordingly, we hold that A.R.S. § 12--525 has no application to this case.

While neither party has raised in this Court the applicability of § 12--524, we think because of the extended nature of this litigation (now over ten years) that the trial court's judgment should be sustained on the basis of that section. On appeal, this Court will sustain the trial court's judgment on any theory supported by the evidence if the trial court could only come to one legal conclusion. Komarek v. Cole, 94 Ariz. 94, 381 P.2d 773; In re Sherrill's Estate, 92 Ariz. 39, 373 P.2d 353; Tevis v. Ryan, 13 Ariz. 120, 108 P. 461, aff'd 233 U.S. 273, 34 S.Ct. 481, 58 L.Ed. 957.

Section 12--524 has four elements:

1. It must be an action to recover a lot in the city or town.

2. It must be against a person who does not have a recorded deed, or

3. Who has not claimed ownership, or

4. Who has not paid taxes thereon for five years.

Elements one, two and three are not in dispute.

The deed from the superintendent of streets, though void, was sufficient to operate as a recorded deed. We said in Sparks v. Douglas, 19 Ariz. 123, 127, 166 P. 285:

'When the statute (12--524) speaks of a recorded deed as one of the elements of title by adverse possession, it specifies the kind or quality of title * *...