Rowe v. Schultz

• Decision Date: 02 February 1982
• Docket Number: No. 1,CA-CIV,1
• Citation: 131 Ariz. 536,642 P.2d 881
• Parties: Ben C. ROWE, Plaintiff-Appellant, v. Arthur C. SCHULTZ, Jr., aka Marvin Standsberry, Defendant-Appellee. 5190.
• Court: Arizona Court of Appeals

Page 881

642 P.2d 881

131 Ariz. 536

Ben C. ROWE, Plaintiff-Appellant, v. Arthur C. SCHULTZ, Jr., aka Marvin Standsberry, Defendant-Appellee.

No. 1 CA-CIV 5190.

Court of Appeals of Arizona, Division 1, Department B.

Feb. 2, 1982.

Rehearing Denied Feb. 24, 1982.

Review Denied March 9, 1982.

Rolle, Jones, Benton & Cole by Larry W. Suciu, Yuma, for plaintiff-appellant.

Westover, Choules, Shadle & Bowen, P.C. by Ted B. Bowen, Yuma, for defendant-appellee.

OPINION

McFATE, Judge (Retired).

Ben C. Rowe brought this action to quiet title to certain land located in Yuma County. The Yuma County Superior Court granted defendant Arthur C. Schultz, Jr. a summary judgment and Rowe appealed. We have jurisdiction over this matter pursuant to A.R.S. §§ 12-120.21(A) and 12-2101(B).

The facts material to a resolution of this case are undisputed. On April 12, 1978, Rowe obtained a quitclaim deed to the land in question from the owners, Mr. and Mrs. Michael Peregoy. However, Rowe did not record his deed until May 18, 1978, some five weeks later. During the interim, on May 12, 1978, Schultz obtained a money judgment against Peregoy on an apparently unrelated cause of action and recorded an abstract of judgment the very same day. There is no contention that Rowe was other than a good faith purchaser for value without notice of Schultz's claim. The sole issue on appeal is whether the recording of the abstract of judgment created a lien against the land which Peregoy had previously conveyed to Rowe. We hold that it did and affirm the trial court's summary judgment.

When reviewing summary judgment, it is clear that this court must consider the facts in a light most favorable to appellants. The benefit of all inferences reasonably drawn from those facts must be given to the party against whom judgment was entered. Arizona Public Service Co. v. Town of Paradise Valley, 125 Ariz. 447, 610 P.2d 449 (1980); Wisener v. State, 123 Ariz. 148, 598 P.2d 511 (1979); Northern Contracting Co. v. Allis-Chalmers Corp., 117 Ariz. 374, 573 P.2d 65 (1977). Rowe challenges the trial court's conclusion that, under the given facts, Arizona's judgment lien statute operates in favor of a judgment creditor to reach his debtor's real property sold in an unrecorded transaction prior to perfection of the lien.

The applicable lien statute, A.R.S. § 33-964(A), provides in pertinent part that:

from and after the time of recording ... a judgment shall become a lien for a period of five years from the date it is given, upon all real property of the judgment debtor except real property exempt from execution, including the interest in the homestead, ... whether the property is then owned by the judgment debtor or is later acquired.

In order to determine the respective interests of Peregoy, Rowe and Schultz in the land when Schultz perfected his judgment lien we must consult Arizona's recording statute. The relevant portions of A.R.S. § 33-412 (emphasis added) provide that:

A. All bargains, sales and other conveyances whatever of lands, tenements and hereditaments ... shall be void as to creditors and subsequent purchasers for valuable consideration without notice, unless they are acknowledged and recorded in the office of the county recorder as required by law....

B. Such unrecorded instruments, as between the parties and their heirs, and as to all subsequent purchasers with notice thereof, or without valuable consideration, shall be valid and binding.

The two statutes must be considered together and each given effect, if possible. If, under the provisions of A.R.S. § 33-412(B), Peregoy effectively divested himself of ownership before Schultz recorded his abstract of judgment, then the land was not "real property of the judgment debtor" under A.R.S. § 33-964(A) and the lien did not attach. On the other hand, if failure to record the deed prior to perfection of the lien rendered it void as to creditors, including Schultz, then the lien attached to the land as though no conveyance had been made.

Rowe contends that since A.R.S. § 33-412(B) validates an unrecorded conveyance as between the parties to a transaction, Peregoy no longer actually owned the land when Schultz's lien was perfected. As liens authorized under A.R.S. § 33-964 attach only to property of the debtor owned at the time or acquired after an abstract of judgment is recorded, Rowe therefore urges that title passed to him by the conveyance and that Schultz's lien cannot apply to land not owned by the judgment debtor when the abstract was first recorded. We do not agree. At early common law there was no lien on real estate and a creditor had no remedy against his debtor's land. 49 C.J.S. Judgments § 454, at 884 (1947); McClanahan v. Hawkins, 90 Ariz. 139, 367 P.2d 196 (1961); Curtis Mfg. Co. v. Barela, 76 N.M. 392, 415 P.2d 361 (1966). Absent a recording statute such as A.R.S. § 33-412(A), it is true that:

Where the judgment debtor conveys his realty before judgment is rendered against him, the judgment is not a lien on the realty conveyed ... (because) as between the parties to it the conveyance is valid, and no interest, legal or equitable, remains in the grantor upon which the lien can rest.

10A G. Thompson on Real Property § 5308, at 662 (1957) (footnote omitted).

Judgment liens are derived from statutes which create them. McClanahan v. Hawkins, 90 Ariz. 139, 367 P.2d 196 (1961). Unless otherwise provided by statute, a judgment lien is subordinate to prior conveyances even where these are not recorded. However, statutes may expressly or by implication require recording of such conveyances if their priority is to be maintained. See 49 C.J.S. Judgments § 485, at 929 (1947) and cases there cited.

Appellant has cited and relies on Luhrs v. Hancock, 181 U.S. 567, 21 S.Ct. 726, 45 L.Ed. 1005 (1901), which was an appeal from a decision of the Supreme Court of the Territory of Arizona. See 6 Ariz. 340, 57 P. 605 (1899). In that case it appeared that Hancock, a debtor of Luhrs, conveyed the subject homestead property to his wife as her sole property by a deed held to be valid as between the parties. Thereafter Luhrs recovered a judgment against Hancock. A few days later Hancock and his wife joined in executing a mortgage on the same property to a third party to secure a loan. Luhrs then levied execution against the property of Hancock and bought the property at sheriff's sale. About two years later, one Pemberton purchased the property at a sheriff's sale on foreclosure of the mortgage. The United States Supreme Court held that the judgment could not prevail against the purchaser at the mortgage foreclosure sale unless it became a lien upon the land; that the legal title to the land having passed from the debtor before judgment was rendered, by a deed valid between him and his grantee, no lien could attach thereto. ¹

Luhrs did not involve a statutory provision such as A.R.S. § 33-412. Indeed, that opinion makes no reference to any recording or judgment lien statute. However, the basic circumstance which compelled the court to rule in favor of the purchaser who deraigned title from Hancock's wife, the grantee under Hancock's deed, was the validity of that deed as between the parties thereto.

Appellant contends that since A.R.S. § 33-412(B) declares an unrecorded deed to be valid as between the parties thereto, the conclusion follows with even greater logical certainty that a grantee in a prior unrecorded deed which is by statute declared valid as between the parties prevails over a creditor who subsequently perfects a judgment lien. To strengthen his argument appellant cites the Oregon cases of Wilson v. Willamette Industries, Inc., 280 Or. 45, 569 P.2d 609 (1977) and Thompson v. Hendricks, 118 Or. 39, 245 P. 724 (1926), wherein under statutes quite similar to the Arizona statutes (§§...