Rogers v. Greer, 5129

• Court: Supreme Court of Arizona
• Writing for the Court: LA PRADE; UDALL, J., having disqualified himself, the Honorable Francis J. Donofrio
• Citation: 70 Ariz. 264,219 P.2d 760
• Parties: ROGERS v. GREER.
• Docket Number: No. 5129,5129
• Decision Date: 19 June 1950

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219 P.2d 760 70 Ariz. 264 ROGERS
v.
GREER. No. 5129 Supreme Court of Arizona. Decided June 19, 1950.

[70 Ariz. 265] W. E. Ferguson, of Holbrook, for appellant.

Earl Platt, of St. Johns, for appellee.

DONOFRIO, Superior Judge.

Plaintiff-appellant, Esther I. Rogers, individually and as administratrix of the estates of Isaac Isaacson, Sr., and Elsina Isaacson, husband and wife, prosecutes this appeal from the judgment of the trial court quieting title in defendant and refusing like relief to plaintiff involving the identical property.

The facts about which there seems to be no conflict except as to the interpretation to be placed upon them may be summed up as follows: The plaintiff, Esther I. Rogers, and the defendant, Natalia I. Greer, [70 Ariz. 266] are daughters of the decedents Isaac Isaacson, Sr., and Elsina Isaacson. Prior to September, 1924 the Isaacsons owned a hotel building, the subject of this litigation, in St. Johns, Arizona. On September 29, 1924, defendant acquired a deed which was properly executed, delivered, and recorded soon thereafter, from the Isaacsons covering the property. Prior to and at the time of the deed there had passed from the defendant to Mr. Isaacson several sums of

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money. Testimony varied as to the amount but defendant claimed to have loaned the sum of $2,600, receiving notes therefor prior to the deed, and that she paid the sum of $400 cash at the time the deed was executed. At all times subsequent to this deed, defendant had possession of the property and collected the rents therefrom and paid taxes thereon. There is, however, some dispute as to certain of these rent collections and tax payments, and in an instance of the execution of a lease on the premises by Mr. Isaacson, also as to certain repairs. The building was occupied by several tenants, and in some instances by decedents' children. For the most part all business transacted concerning the property was done by defendant personally, although, in some instances the father was consulted. Defendant borrowed some money, executing a mortgage on the property, part of which is outstanding.

It was contended by plaintiff and denied by defendant that defendant executed a deed of the property back to her parents subsequent to September 29, 1924. The evidence on this point arose in the following manner. On cross-examination defendant was interrogated at some length concerning execution of a deed by herself or together with her then husband reconveying the property to her father. This she denied and was then asked if she had not testified in a divorce cause in Maricopa County entitled Gilbert E. Greer, Plaintiff vs. Natalia I. Greer, Defendant, to the effect that she didn't own the property and that she had deeded it back to her father. To impeach her testimony in this regard a transcript of her testimony in 1942 presumably given at an order to show cause hearing in her divorce case was placed in evidence. It appears from the reading of this transcript that she did state she and her husband had executed a deed back to her father which had not been recorded.

Other facts material for the purposes of the opinion will be stated later in the proper connection.

There are two assignments of error by plaintiff. First, that the court erred in rendering judgment for defendant and against plaintiff in refusing to quiet title in plaintiff under the theory of her complaint, and, secondly, that the court erred in refusing to treat defendant as being estopped by deed. There are six legal propositions which will be discussed as they arise in the case.

Plaintiff's complaint to quiet title advances three theories as to her ownership [70 Ariz. 267] of the property. First it is alleged that the decedents Isaacson made a deed to defendant for the purpose of securing a loan and was therefore in fact a mortgage; that the loan had been repaid; and that no attempt had been made to foreclose the asserted mortgage. Secondly, she urges that it was orally agreed between the intestates and defendant that said property was to be held in trust by defendant for the use and benefit of said intestates, defendant orally agreeing to manage the property and apply the rents, issues, and profits accruing therefrom upon liquidation of the loan and in payment of taxes and other expenses of the property; further that all considerations for said loan have been repaid to defendant. As a third theory plaintiff urges that defendant reconveyed the land by deed to the intestates Isaacson, which deed has not been placed of record, and has either been lost or destroyed, and by which the defendant is now estopped to claim any interest in the property.

The first question of law which arises is one of pleading. Appellee contends that appellant sets forth in her Amended Complaint two wholly inconsistent allegations and theories, namely, the first being that the deed of September 29, 1924 was in truth and in fact a mortgage, and the second being that defendant acknowledges the deed as a conveyance of title, but maintains that it was conveyed in trust, and that there was an oral agreement to hold the property in trust for the use and benefit of appellant's intestates.

We believe that these two claims can properly be pleaded and the theories advanced under our rules of civil procedure, Section 21-408, A.C.A.1939, which provides as follows:

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'Pleading to be concise and direct--Consistency.--(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.

'(2) A party may set forth two (2) or more statements of a claim or defense alternatively or hypothetically, either in one (1) count or defense or in separate counts or defenses. When two (2) or more statements are made in the alternative and one of them if made independently would...