Tway v. Payne

Decision Date22 April 1940
Docket NumberCivil 4196
Citation101 P.2d 455,55 Ariz. 343
PartiesE. D. TWAY, Appellant, v. BEULAH PAYNE and JOHN H. BOATMAN, as Administrator With the Will Annexed of the Estate of WILLIAM R. PAYNE, Deceased, Appellees
CourtArizona Supreme Court

APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge. Judgment affirmed.

Messrs Clark & Clark & Clark, for Appellant.

Mr Lynn M. Laney and Mr. Grant Laney, for Appellees.

OPINION

LOCKWOOD, J.

This is an action by John H. Boatman, as administrator with the will annexed of the estate of William R. Payne, deceased, and Beulah Payne, hereinafter called plaintiffs, to quiet title to certain property set forthe therein, as against E. D Tway, hereinafter called defendant. The complaint sets up that William R Payne died testate, leaving surviving him as his only heir and sole beneficiary his wife, the plaintiff Beulah Payne. It then alleges that the property involved therein was acquired by deceased and Beulah Payne during their marriage to each other and was community property, and that defendant makes a claim to the premises adverse to plaintiffs, based upon a judgement recovered by defendant against deceased upon a separate and not a community liability of the latter.

Defendant demurred to the complaint, and then set up in bar that the action was a collateral attack upon a judgment which had become res adjudicata, and answered admitting the recovery of the judgment and that he claimed a lien by virtue thereof. The demurrer was overruled and the case was tried before the court sitting without a jury, and evidence being taken and the court being fully advised, judgment was rendered in favor of plaintiffs, whereupon this appeal was taken.

There are a number of procedural points raised by both parties, but we think there are only two questions requiring our consideration. The only evidence brought up was the judgment roll in the action between defendant and the deceased above mentioned, though the record shows a number of witnesses testified. We must assume, therefore, that so far as the facts are concerned, and are not contradicted by the judgment roll aforesaid, they support plaintiffs' theory of the case.

It appears, therefore, that defendant during the lifetime of deceased recovered a judgment against him on a separate indebtedness, which judgment was duly docketed and recorded as provided by sections 2014-2016, Revised Code 1928; that the real property involved in this action was, at the time of the recovery of the judgment and its docketing and recording as above set forth, the community property of plaintiff Beulah Payne and deceased, and that deceased died within five years after the docketing of said judgment. The question before us then is whether, under our law, the judgment was a lien upon the real estate involved.

It is the law of Arizona that community property is not subject to the separate debts of either spouse. Cosper v. Valley Bank, 28 Ariz. 373, 237 P. 175. When, therefore, the judgment obtained by defendant was docketed, it did not become a lien on the real estate involved herein. We have also held that after a community is dissolved by death, the interest of the deceased spouse becomes liable for his separate debts. Jackson v. Griffin, 39 Ariz. 183, 4 P.2d 900. The question then is whether the lien of the judgment, which under the law did not attach to the property during the lifetime of the judgment debtor, does attach upon and after his death.

Judgment liens...

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11 cases
  • United States v. Limbs
    • United States
    • U.S. District Court — District of Arizona
    • March 8, 1973
    ...Sections 33-901, 33-902 (1972) 21 Id., section 33-931 22 Id., section 33-951 23 Id., section 33-961. 24 In Arizona, Tway v. Payne, 55 Ariz. 343, 101 P.2d 455 (1940) states that "Judgment liens are creatures of statute, and are governed by its terms." at 456. See also McClanahan v. Hawkins, ......
  • Jackson v. Phoenixflight Productions, Inc.
    • United States
    • Arizona Supreme Court
    • May 28, 1985
    ...is merely a money judgment and does not create a lien. See McClanahan v. Hawkins, 90 Ariz. 139, 367 P.2d 196 (1961); Tway v. Payne, 55 Ariz. 343, 101 P.2d 455 (1940). ...
  • Vikse v. Johnson, 2
    • United States
    • Arizona Court of Appeals
    • June 17, 1983
    ...where referring to the community property and citing Maricopa County v. Douglas, 69 Ariz. 35, 208 P.2d 646 (1949); Tway v. Payne, 55 Ariz. 343, 101 P.2d 455 (1940); Forsythe v. Paschal, 34 Ariz. 380, 271 P. 865 (1928) and Cosper v. The Valley Bank, 28 Ariz. 373, 237 P. 175 (1925), as well a......
  • Maricopa County v. Douglas
    • United States
    • Arizona Supreme Court
    • July 18, 1949
    ... ... Cosper v. Valley ... Bank, 28 Ariz. 373, 237 P. 175; Forsythe v ... Paschal, 34 Ariz. 380, ... [208 P.2d 651] ... 271 P. 865; Tway v. Payne, 55 Ariz. 343, 101 P.2d ... Public ... policy favors the protection of the marriage relationship and ... family unit. Forsythe ... ...
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