Sumid v. Cairns

• Citation: 220 P. 1084,25 Ariz. 597
• Decision Date: 22 December 1923
• Docket Number: Civil 2066
• Parties: SADIE B. SUMID and RICHARD SUMID, Appellants, v. NINA L. CAIRNS, Appellee
• Court: Arizona Supreme Court

220 P. 1084

25 Ariz. 597

SADIE B. SUMID and RICHARD SUMID, Appellants, v. NINA L. CAIRNS, Appellee

Civil No. 2066

Supreme Court of Arizona

December 22, 1923

APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Affirmed.

Messrs Kibbey, Bennett, Gust & Smith and Mr. Frank J. Duffy, for Appellants.

Messrs Alexander & Christy, for Appellee.

OPINION

LYMAN, J.

The plaintiff, Nina L. Cairns, appellee in this court, is suing to have certain lands impressed with a trust for her benefit and for an accounting. The decree of the court upon findings of fact and conclusions of law was in her favor. The court found that in January, 1913, Herbert L Sanderson, the father of the plaintiff and of Sadie B. Sumid one of the defendants, and the wife of the other defendant, who are appellants in this court, deeded to defendant Sadie B. Sumid, the land in question, including an eighty-acre tract and two town lots. In form the conveyance was a plain warranty deed. It was the purpose, however, of the grantor, as expressed by oral agreement with grantee, to vest the title to an undivided one-half of the premises absolutely in the grantee, and the other undivided one-half in trust for the use and benefit of the plaintiff, then Nina L. Sanderson, who was at the time non compos mentis, residing in a sanitarium in the state of California. By the terms of the trust the defendant Sumid was required to use the trust estate, or the proceeds from it, or such part of the proceeds as might be required, for the care and support of her invalid sister, the plaintiff, during the period of her disability, and, if she should recover, to turn over to her any unused portion of such trust estate.

In March of the same year plaintiff was discharged from the sanitarium, and then or soon afterwards recovered her mental and physical health, continuing to reside in California, until shortly before the commencement of this action by the advice of her physicians that the climate there was more favorable to her health.

The defendant trustee executed her trust to the extent of providing funds for the care of her sister while confined in the sanitarium. In October, 1914, the plaintiff learned for the first time from her father the fact and conditions of the conveyance by him of the lands to her sister. Subsequently she wrote to her sister, asking her to comply with the terms of the trust. This demand was repeated a number of times without receiving any answer whatever. In the meantime, defendant Sadie B Sumid had conveyed an undivided one-half of the farm lands to her husband, Richard Sumid, the other defendant, who had advanced such funds as had been used in caring for the plaintiff and in paying taxes and water charges on said lands. This suit was commenced in May, 1920.

The sufficiency of the complaint to state a cause of action is raised by demurrer, which was overruled. The ruling of the court is declared here to be erroneous. The complaint, preliminary to stating the cause of action substantially as above indicated, recited that, before making the deed to defendant, Sanderson, had executed and delivered to the plaintiff a deed, in which he conveyed jointly to her and to her sister, Sadie B. Sumid, the same eighty acres of land. This deed, unrecorded, was with plaintiff's effects, which were taken possession of by the defendant Sadie B. Sumid at the time of plaintiff's illness, and was never surrendered or accounted for.

The complaint also alleged that the plaintiff, upon recovering her mental capacity and learning of the conveyance to her sister in trust for her own benefit of the same premises which had formerly been conveyed to her directly, acquiesced in the transaction. It seems to be the view of the demurring defendant that, after having conveyed the eighty acres in question to the plaintiff, the subsequent conveyance of the same land to the defendant in trust for the plaintiff was void and without effect, and so indeed it would have been had not the plaintiff acquiesced in the subsequent transfer, as it is alleged in the complaint that she did do.

It would seem unnecessary to enforce by argument or authority the proposition that the plaintiff could herself have returned the deed to the grantor, and have authorized the grantor in the place of the old one to execute a new deed of such import, as he in fact did do, and deliver it to the defendant Sumid. Under such circumstances the plaintiff would be estopped from disputing the efficacy of the new deed. What she could authorize to be done she can with equal effect ratify and acquiesce in after it is done. Wardman v. Harper, 156 Iowa 453, 136 N.W. 893; Tallman v. Huff, 65 Colo. 128, L.R.A. 1918f, 399 173 P. 869.

The plaintiff was not, however, called upon to disclose by either pleading or proof the character of Sanderson's title at the time he made conveyance to the defendant. After defendant accepted the trust, and took possession of the premises...